Petition — Jackson v. Hayakawa

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IN THE ) FEB

SUPREME COURT 1.

OF THE LD

UNITED STATES

No 791232

CHARLES JACKSON, LONNIE DANIELS, JOHNNY JENKINS,

PETER PURSLEY, JEAN SIMMONS, ISSAC REAMS, STEVE BELL,

TROTTER JORDAN, and ANTHONY GREENE, on behalf of themselves

and all others similiarly situated; THE BLACK STUDENTS’ UNION, and

unincorporated association; WILLIAM E. PHILLIPS and PHILLIP

FRAZIER,

S.I. HAYAKAWA, former President of San Francisco State College

BOARD OF TRUSTEES OF THE CALIFORNIA STATE COLLEGE

SYSTEM; SAN FRANCISCO STATE COLLEGE; DONALD GARRITY,

Vice President for Academic Affairs at San Francisco State College:

FRANK DOLLARD, Executive Vice President at San Francisco State Col-

lege; DONALD SCOBEL, Administrative Assistant at San Francisco

State College; EDWARD DUERR, Coordinator of Internal Affairs at San

Francisco State College; ORRIN DELAND, Business Manager at San

Francisco State College; WILLIAM HARKNESS, Dean of Student Ac-

tivities at San Francisco State College, and PAUL ROMBERG, current

President of San Francisco State College, individually and in their official

Capacity,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RONALD J.L. JACKSON

ENGRAM, OWENS & JACKSON,

ESQS.

2 West 45th Street

Suite 607

New York, New York 10036

Counsel for Petitioners

JOHN A. TURNER, JR.

Member, U.S. Supreme Court

DIXON and TURNER, ESQS.

1420 N Street, N.W.

Washington, D.C. 20005

February 6, 1980.

SUBJECT INDEX

Pages

»»» P cevace eb ces 2

,,,, . 2

—ĩ]ʃö.- u ̃òÜ— 2

IV. Statutory Provisions Involved ...................... 3

SR ] a

VI. Reasons for Granting the Writ ...................... 13

J. THE DECISION BELOW VIOLATES DUE PRO-

CESS BY GIVING BINDING EFFECT TO A

PRIOR SUIT, CARRILLO ET AL v HAYAKAWA,

ET AL WHICH HAS NEVER CERTIFIED AS A

CLASS ACTION NOR WAS NOTIFICATION OF

THE SUIT EVER MADE TO PETITIONERS ... 16

2. THIS COURT MUST RESOLVE A CLEAR CON-

FLICT BETWEEN TWO CIRCUITS — THE NINTH

AND DISTRICT OF COLUMBIA RESPECTING

ITS PRECEDENCE IN AMERICAN PIPE AND

CONSTRUCTION CO. V.UTAH ............... 20

3. IT WAS IMPROPER TO GRANT SUMMARY

JUDGMENT WHEN THE FACTS SHOW PRIMA

FACIE CASE OF RACIAL DISCRIMINATION. .25

%% ta ee ers oye too wide ws . ˙ cae 36

Appendix (Opinion and Judgment of Court of

yyjy³ůů . ce cane App. 1

(Opinion and Judgment of the U.S.

District Court, Northern District

SEES er App. 2

Respondents Blacklist and

Accompanying Names App. 3

Declaration of Dr. Peter Pursle y App. 4

TABLE OF AUTHORITIES CITED

Cases

American Pipe and Construction Co.v.

Utah, 414 U.S. 588 (197 )) 3 3. 11. 13, 29

In Re Brown, et al. 510 P. 2d. 1017

(Cal. S. Ct. 1073), cert, denied

JJ ta, REL ORS ES ee I ce ret 5. 7.12.13.22

Wong v. Hayakawa, 464 F. 2d. 1282

f , ]ͤ » 5. 7. 11.12

Carrillo v. Hayakawa (N. D. Cal. June 21, 1989) 5. 6. 7, 10.11.38

Mullane v. Central Hanover B & T Co.

e A ee 18

Sovereign Camp v. Bolin

eg i RE SABC 2 Seg eb SIE IN oc SS eh 18

McCarthy v. Kleindienst, 562 F. 2d. 1269

GMG 12. 13.21

Radio Telegraphers v. Railway Express

Agency, 321 U.S. $42, 248(19044)........................ 14,23

Associated Students v. Board of

Trustees of California State

Universities and Colleges, 56 C.A.

3d. 667, 128 Cal. Rptr. 601 (March, 1976) .................... 29

McDonnell Douglas Corp. v. Green,

Ae RR SER SET SSG NON i a 36

Healy v. James, 408 U.S. 169(1972) ........................ 36

Wood v. Strickland, 420 U.S. 308(1975)..................... 20

Franks v. Bowman Transportation Co.,

fee! cin) Rel 7777 Ae nER 25

/ te OO 3,12, 13

—. ę ß p A ̃ ˙ ae 25

Federal Statutes

42 USC 1981 et. seq., .. TTT 26

Federal Rules

Civil Procedures

is ñðↄvdß̃̃ñ ̃ ß ³ a es 3.12 16,18

kf gm Ree ED 950) 1 CN Rat EDEN , 24

State Statutes

California Education Code J 3.19.28

Text and Periodicals

9 Harvard Law Review 1318, 1402-14100 17

Orrick, Shut it Down! A College in Crisis (1969)............. 14

Axen, Smith, Pentony, (by any means necessary)

„„ d eee FR 19

IN THE

SUPREME COURT

OF THE

UNITED STATES

No.

CHARLES JACKSON, LONNIE DANIELS, JOHNNY JENKINS,

PETER PURSLEY, JEAN SIMMONS, ISSAC REAMS, STEVE BELL,

TROTTER JORDAN, and ANTHONY GREENE, on behalf of themselves

and all others similarly situated; THE BLACK STUDENTS’ UNION, and

unincorporated association; WILLIE E. PHILLIPS and PHILLIP

FRAZIER,

Petitioners

VS.

S.I. HAYAKAWA, former President of San Francisco State ‘

BOARD OF TRUSTEES OF THE CALIFORNIA STATE SYSTEM:

SAN FRANCISCO STATE COLLEGE: DONALD GARRITY, Vice Presi-

dent for Academic Affairs at San Francisco State College; FRANK

DOLLARD; Executive Vice President at San Francisco State College;

DONALD SCOBEL, Administrative Assistant at San Francisco State Col-

lege; EDWARD DUERR, Coordinator of Internal Affairs at San Francisco

State College; ORRIN DELAND, Business Manager at San Francisco

State College; WILLIAM HARKNESS, Dean of Student Activities at San

Francisco State College, and PAUL ROMBERG, current Presideut of San

Francisco State College, individually and in their official Capacity,

Respondents, -

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

The petitioners, CHARLES JACKSON, LONNIE DANIELS,

JOHNNY JENKINS, PETER PURSLEY, JEAN SIMMONS, ISSAC

REAMS, STEVE BELL, TROTTER JORDAN, and ANTHONY

GREENE, on behalf of themselves and all others similarly situated, THE

BLACK STUDENTS’ UNION, an unincorporated association, WILLIE E.

PHILLIPS and PHILLIP FRAZIER, respectfully pray that a writ of cer-

tiorari be issued to review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit entered in this proceeding on Oc-

tober 4, 1979.

OPINION BELOW

The opinion of the Court of Appeals, which appears

in the appendix hereto as App. 1, infra, is reported at

605 F. 2d 1121 (1979). In addition, the opinion of the

District Court for the Northern District of California

entered on April 20, 1977, appears in the appendix

hereto as App. 2, infra, but is not otherwise reported.

JURISDICTION

The final judgment of the Court of Appeals was

entered on October 4, 1979. A timely application for an

extension of time to file this petition was made to the

Honorable Justice Rhenquist. The application was ap-

proved and an extension given to and including

February 8, 1980. The petition was filed within the

deadline date of February 8, 1980. This Court’s j ic-

tion is invoked under 28 U.S.C., Section 1254 (1).

QUESTIONS PRESENTED

1. Whether absentees in a prior uncertified class

action were denied due process in that the prior suit was

held to have binding effect on their first claim in the ins-

tant case.

2. Whether, by the erroneous application of res

judicata to the instant case the plaintiffs were denied

equal access to the Courts and due process of law.

3. Whether the Appeals Court erred in not follow-

ing this Court’s decision in American Pipe and Construc-

tion Co. v. Utah, 414 U.S. 538 (1974), when it barred

plaintiff PURSLEY’S intervention as untimely.

4. Whether, the due process and equal access in-

herent to Federal Rules of Civil Procedure, Rule 23 is ill-

served when, assuming plaintiff PURSLEY is the sole

named representative and his claim is held time barred,

a timely brought class action is barred as well.

5. Whether Summary Judgment was proper on the

issue of racial discrimination in the allocation of student

fees just because plaintiff, BLACK STUDENTS’

UNION, could only show a reduced allocation rather

than no allocation, but did show that black student

employees were denied their salaries while white

students were not.

STATUTORY PROVISIONS PROVIDED

The First Amendment to the United States Con-

stitution, 42 U.S.C., Sections 1981, 1983 and 1985, Rule

23 of the Federal Rules of Civil Procedure, the California

State Education and Administrative Codes, and the

California State Penal Code (via pendent jurisdiction).

STATEMENT OF THE CASE

During the school year 1968 and 1969, a significant

part of the student and faculty of SAN FRANCISCO

STATE COLLEGE, (now California State University,

San Francisco) went on strike in protest against what

they believed was the college administration’s

undemocratic and manipulative intervention in student

and faculty affairs. At some unspecified time in 1968,

and continously through the relevant period, the City

Police had a visible presence on the campus along with

various plainclothes and other secret police and the

FBI’s Operation COINTELPRO domestic Spying Cam-

paign, all with the actual approval of the college ad-

ministration and the encouragement of the Board of

Trustees. To deal with the strike and a effort to resume

the classroom instructional program, S. I.

HAYAKAWA, “acting President“, issued a nuthber of

regulations, most of which proved ineffective and con-

stitutional appropriateness of which is questionable.

For most of the decade of the sixties, students and

faculty had established a free speech platform located

in the central area of the campus. In this location

speeches, rallies and demonstrations were the usual fare.

No prior administrations had ever challenged the right

of students to rally and protest in this area until S.I.

HAYAKAWA became “acting President”. For exam-

ple, the Decree dated December 2, 1968, entitled

Declaration of Emergency“ contained a provision as

follows: 1

„3. The Speakers Platform shall be available to

only those persons of groups who have scheduled

the use of the facility with the Dean of Students

Office. The use of the facility will be at such times

and under such conditions as shall be announced

by that office.

Naturally, for the guardians of liberty who typically

made use of the platform, this decree provoked even

greater use of the platform.

On or about January 4, 1979, the defendant,

HAYAKAWA, ISSUED A Decree which imposed an

absolute ban on further use of the platform for the

period January 6th through January 31st.

The decree prescribed all ‘‘rallies, parades, be-ins,

hootannies, hoedowns, shivaries, and all other public

events likely to disturb the studious in their reading and

reflection... The Speakers Platform may not be used and

no substitute locations on the central campus are

authorized. All persons on the campus would be re-

quired to show that their presence was authorized. As

a sweetener, acknowledging the sentiments against

police presence on the campus, the decree stated that

the large numbers of police on the campus” would be

removed, however, some of the “uniformed officers’’ will

be stationed in classroom buildings,

In the January 4th decree, HAYAKAWA insisted

that rigid compliance was his intention, unlike his more

lenient treatment of those who disregarded his directive

of the prior month |

The January 6th decree provoked even greater

anger on the part of the students and facul*y and

broadened the support for the strike.

On January 23, 1969, the leaders of several student

organizations consisting of members of racial and ethnic

minorities held a rally on the Speakers Platform. Over a

thousand of the students and faculty members attend-

ed, Shortly after the rally began, a college administrator

ordered all to disperse. Concurrently, two large con-

tingents of policemen known as the Tactical Squad

established lines in strategic locations which prohibited

the attendees from dispersing or otherwise

demonstrating around the campus. The Tactical Squad

then arrested over 400 students, beat many and hauled

them all off in vans which stood ready for that purpose.

They were all booked, fingerprinted and photographed.

Most were jailed and humiliated for hours and days.

The charges against the students varied. Some were

charged with resisting arrest, others for unlawful

assembly (California Penal Code, Section 408), breach of

the peace (Sections 406 and 407), and failure to disperse

(Section 409).

Expectantly a number of civil suits arose from this

unconstitutional conduct on the part of the administra-

. *

;

tion in concert with the City Police. For example, the

California State Supreme Court, Jn Re Brown, 510 P.2d.

1017 (Cal. S. Ct., 1973), cert. denied, 416 U.S. 950 (1974),

held that the arrests were unlawful as to each and every

violation which formed the grounds for the 10 defen-

dants convictions in that case. Subsequent disciplinary

actions by the College against many, if not all, arrestees

was invalidated in Wong v. Hayakawa, 464 F.2d. 1282

(9th Cir. 1972), because the evidence used to discipline

the students was held not relevant to the particular stu-

dent. The plaintiffs in Wong also challenged the con-

stitutionality of Hayakawa’s Decrees and the absolute

ban of January 6 as abridgements under the First,

Fourth and Fifth Amendments. However, before deci-

sion in that case, Hayakawa rescinded the regulations

and thereby successfully mooted the constitutional

issue respecting them.

The instant case embraces the issues determined in

those cases and, would embrace the issues determined in

still another suit, Carrillo et al. v. Hayakawa, (Index No

50808, U.S. Dist. Ct., N.D. Cal., June 21, 1969), had that

court made a determination to give class status to the

plaintiff’s claim respecting arrests.

In their original complaint filed in or about March

21, 1972, plaintiffs brought suit in their own behalf and

on behalf of others, similarly situated alleging a con-

spiracy by threats, intimidation and other unlawful

means to deprive black students at the college of their

“right, privilege, opportunity and the means to remain

matriculated at the college and participate in student ac-

tivities. Amongst the acts alleged in pursuit of the con-

spiracy was maintenance by the college administration

of a blacklist containing the names of plaintiffs, black

and white and others, and another list containing the

names of professors and instructors, They sued for a

declaratory judgment. In addition, they sought an in-

junction as to the continuing conduct, as to student elec-

tions controlled by the administration and from reap-

propriation and expenditure of sums allocated to or

under the control of the associated students. Further,

they included a prayer for damages and urged the Court

to place the College in receivership.

On August 15, 1972, they filed their first amended

complaint. In this complaint, they specifically identified

the class on whose behalf they were bringing the action

as all students, student organizations and the faculty.

In their prayer they demanded higher damages than in

the original suit. They also sought declaratory judg-

ment as to the rights of the various parties in relation to

the enumerated conduct of the defendants and “that

defendants be enjoined from any further termination of

the employment of any faculty members, from any fur-

ther use of “blacklists”, and any further expulsion or

suspension of black students“;

f. That all faculty, administrators, and students

terminated pursuant to said conduct be

reinstated with full rights and privileges,”

The Second Amended Complaint, dated February

18, 1975, had as a first count“ allegations respecting

the mass arrest of students on January 23, 1969. They

alleged that the arrests violated the plaintiffs’ rights to

peaceful assembly and free speech under the First

Amendment, deprivation of right to “freedom from ar-

rest, except under probable cause” as guaranteed by the

Fourth Amendment and the Fourteenth Amendment.

The second amended complaint also referred to the

blacklist but did not name PETER PURSLEY as a

representative party. At the time of that complaint, the

trial court determined to certify a subclass defined as

follows:

Those persons whose names appear on a list,

originally attached to a memorandum signed S. I.

HAYAKAWA, dated February 17, 1969, or on

amend d official lists subsequently issued con-

taining additional names, and who were denied

employment because their names appeared on

said lists and who would have otherwise obtained

employment in a college employment program.

The relief they sought prayed for reinstatement of

terminated students and faculty.

The First Cause of Action in the Instant Case

In their Third Amended Complaint, filed February

4, 1976, the plaintiffs, JACKSON, ET AL., sought class

certification of their first cause of action. In that com-

plaint, plaintiff alleged that the defendant,

HAYAKAWA, and the college administration entered

into a scheme and conspiracy, with the City of San Fran-

cisco Police Department to deny and deprive the class

members their constitutional rights under the First,

Fifth and Fourteenth Amendments. These constitu-

tional rights were infringed when on January 23, 1969,

HAYAKAWA, summoned the police to the campus

where they stood ready and did arrest en masse over 425

students who were peaceably assembled for a rally and

demonstration in support of a student strike led by the

black students and the BLACK STUDENTS’ UNION.

The trial court granted the defendants’ motion for

summary judgment on the following grounds; That the

statute of limitations bars the action since the arrests

occurred on January 23, 1969 and the original complaint

had not been filed until March 21, 1972. The applicable

state statute of limitations for civil rights actions under

42 U.S.C., Section 1983 was held to be 3 years from the

time of the 1983 violation. The court held alternatively

that under the principle of res judicata the prior suit of

Carrillo v. Hayakawa, since brought as a class action,

bars the instant claim.

The Appeals court upheld the summary judgment

on principles of res judicata and saw no need to ascer-

tain the appropriateness of the dismissal by the trial

court on grounds of the California statute of limitations.

The Second Cause of Action

In their second cause of action, plaintiff PURSLEY

was named for the first time. He and the plaintiffs

DANIELS, GREENE and SIMMONS alleged that

subsequent to the mass arrest on January 23, 1968, and

on February 17, 1969, a black list and amended blacklist

of arrestees and supporters was compiled by the defen-

dant, HAYAKAWA, and persons acting under his con-

trol and direction. The blacklist was used to punish, bar

employment and otherwise deny equal protection to

those persons listed. The intention of non-employment

was explicit in a cover statement of policy authored and

signed by HAYAKAWA which circulated to ad-

ministrators, professors, college employers and student

officers as well as to others outside the academic com-

munity. (App. 4) The blacklist included the names of

students and faculty members. The trial court denied

the claims of DANIELS, GREENE and SIMMONS in

that notwithstanding the fact that they were named on

the blacklist, they could not show actual loss of employ-

ment. With regard to PURSLEY, it held that although

denied employment because of the blacklist his claim

was barred because he did not become a named plaintiff

in time to obtain relief on his individual claim. In par-

ticular, the court noted (erroneously under the cir-

cumstances) that PURSLEY was informed he would not

be rehired on March 6, 1969. The original complaint was

filed on March 21, 1972. Therefore, due to a period of a

mere 4 days, his claims were held barred under the

California 3 year statute of limitations on claims under

42 U.S.C., Section 1983. The court further held that

since PURSLEY’S individual claim was barred, the

claims of the class nembers was barred notwithstan-

ding that the class action was timely brought. The Ap-

peals Court affirmed the summary judgment on this

cause of action.

The Third Cause of Action

The trial court granted summary judgment on the

Third Cause of Action as well. However, the Court of

Appeals reversed that decision, based on the awaited

decision of Wong v. Hayakawa, supra. This cause,

therefore, is not included in this petition.

The Fourth Cause of Action

Petitioners did not appeal the trial courts grant of sum-

mary judgment in the Fourth Cause of Action.

Therefore, this claim is not included in this petition.

The Fifth Cause of Action

In this cause of action, plaintiffs, JACKSON,

BELL, DANIELS, FRAZIER, PHILLIPS, REAMS

and all members of the BLACK STUDENTS’ UNION

(BSU) alleged that in violation of Section 23803 of the

California Education Code, the defendant,

HAYAKAWA and others in the college administration,

conspired and schemed to deprive them of their rights to

due process and equal protection under the Fifth and

Fourteenth Amendments. In particular they claimed

that the defendants disapproved student budget as it

related to the BSU thereby reducing the amount of

money allocated to it to operate this tutorial program

for urban high school youngsters and refusing to

disburse salaries to those students employed by the

BSU. The unlawful purpose was to punish the BSU for

its involvement during the earlier student and faculty

strike against the administration. No white student or

org *nizations run by white students similarly involved

in the strike were deprived of funds or denied salaries.

Therefore, the plaintiff's rights under the Civil Rights

Laws, 42 U.S.C., Section 1983, were also violated.

The trial court granted the defendant’s summary

judgment motion on this claim as well as holding that

BSU received more funds than it was entitled to and in

fact... a disproportionately large share of available

funds. Therefore, it was not subject to discrimination

and its ‘expectations’ of greater funding is not a claim

upon which relief can be granted.” The Appeals Court

affirmed the summary judgment on this claim:

REASONS FOR GRANTING THE WRIT

According to a Staff Report to the National Commission

on the Causes and Prevention of Violence, San Francisco

State College, a forerunner in educational innovation

and student self-government, became from October,

1968 to April, 1969, the scene of violence unmatched in

the history of American higher education. The campus

became the first to be occupied by police on a continuous

basis over several months.* A prime consequence of the

turmoil was a virtual extinction of the constitutional

rights of students and faculty alike by the acting Presi-

dent of the College, SAMUEL I. HAYAKAWA and the

college administration.

The rights which the plaintiffs for their first cause seek

to vindicate are constitutionally fundamental: the right

to free expression_and association. On two occasions,

December and January, the defendant, HAYAKAWA,

promulgated broad and absolute prohibitions against

student rallies and demonstrations in hopes of breaking

the strike. Those decrees were violative of the Con-

stitution on their face. In this light, his bad faith was

established prima facie. But he did not limit his conduct

to these relatively ineffective regulations. He used the

disregard by the students of those regulations to sum-

mon the San Francisco Police to the campus in the morn-

ing in anticipation of the noon day rally and demonstra-

tion.

»The report is entitled Shut It Down!” A College in

Crises San Francisco State College, October, 1968

April. 1969, prepaid by William H. Orrick, Jr. (June,

1969).

During the rally the speakers had addressed those

assembled for less than 15 minutes when, at

HAYAKAWA’S behest, the police encircled them, beat

and arrested them. Plaintiffs maintained that the ar-

rests were in furtherance of a conspiracy and scheme to

violate their civil rights and the civil rights of members

of their class.

The factual background of this case compels the at-

tention of all lovers of our Constitution. It also exposes

a calculated disregard of this Court’s existing

precedence by the state Attorney General, the Trial

Court and the Ninth Circuit of Appeals.

The abrupt dismisal of this meritious case was a

tragic blight on the administration of justice and a set

back for democracy. It was a flimsy sham and smoke

screen decision that was less human and less generous

than any legal apology as applied to student civil rights.

The courts below have allowed respondents to operate

above the law-legibus solutus-and petitioners could find

no real security under our Constitution: it was a

counterfeit constitution, which means there is no securi-

ty, no order, no peace and no real freedom for anyone. It

is the deplorable truth that the courts below slyly

manuevered to politically dispose of this because

respondents hold office in government, and summary

judgment was used as the legal vehicle that would

enable them to escape the penalty for their brutality and

lawlessness. The courts below would allow respondent

to tear up the Bill of Rights“ as though our constitu-

tion was a document of octroyee of the 19th Century

Restoration, - a constitution gratiously given to us by

the king. This is not a case in an exercise of Zoroastrian

theology, the struggle between the forces of darkness

and light. There were clear factual disputes and a series

of fundamental constitutional questions for a trier of

fact. Petitioners were entitled to have their day in

court.“

1. THE DECISION BELOW VIOLATES DUE

PROCESS BY GIVING BINDING EFFECT TO

A PRIOR SUIT, CARRILLO ET AL V

HAYAKAWA, ET AL, WHICH HAS NEVER

CERTIFIED AS A CLASS ACTION NOR WAS

NOTIFICATION OF THE SUIT EVER MADE

TO PETITIONERS

The extension of binding effect of the prior suit to

plaintiffs as absentees in the prior suit had no basis

because the certified record in Carrillo clearly shows

that the Court made no finding of class status either

before or after denying the equitable and declaratory

relief sought in that suit.

If plaintiffs were to be bound by the prior suit, than

the propriety of class status to that suit should have

been adjudicated prior to judgment in the merits in

order to insulate the class judgment from collateral at-

tack. See Advisory Comm. note, 39 FRD 106 (1966) to

Federal Rule of Civil Procedure, Rule 23.

This Court still has the task of giving guidelines

respecting the substantive due process to be afforded

absentee class members in class suit. Cf. 89 Harvard

Law Review 1318, 1402-1416. The absence of such direc-

tion has caused the Trial Court and the Ninth Circuit

Court of the Court of Appeals to misconstrue Rule 23’s

requirements and in so misconstruing, to deny plaintiffs

equal access to court.

Moreover, the decision to deny relief to plaintiffs in

Carrillo was reached on a record that did not go beyond

the pleadings and the affidavits of a number of arrestees

and the unrelated affidavits of the defendant police and

college security forces.*

There is relatively strong policy in favor of protec-

ting a class action judgment against challenges by class

members who did participate in the original action.

Otherwise. the benefits of the class action will be lost

and what has often been time-consuming and expensive

litigation will have settled nothing. Moreover, the pro-

cedural requirements for a class suit usually are design-

ed to make certain that the application of res judicata

and collateral estoppel is fair and equitable. Thus, a

* Those same affidavits were held disqualified as a

basis for conviction of arrestees since the vandalism

they claimed as the basis for disciplinary action against

students since they addressed acts had occuring on days

prior to January 23. Cf. Inre Wong v. Hayakawa, 464 F.

2d. 1282 (9th Cir. 1972).

limitation on collateral attack exists and will not bind

members when it can be demonstrated that the

representation of his or her interest had been inadequate

or that some other basic prequisite to class action treat-

ment (e.g., notice) has not been satisfied, and enforce-

ment of the judgment would be inequitable. Notice to

absent class members is crucial to this class action since

the members of the class are tenuously affiliated and

without it the requirements of due process would not

permit the judgment to bind unnotified absentees.

Petitioners were denied due process under the Four-

teenth Amendment by the District Court’s decision that

a prior uncertified class action, for which petitioners

received no notice under FRCP Rule 23, either initially,

during or after the trial, effectively bars the instant

claim respecting the mass arrests res judicata. Although

the Carrillo complaint contained class allegation, a class

was not certified by the court. Under suth cir-

cumstances, those individuals not a party in Carrillo

should not be bound by that judgment. They had no

notices that a lawsuit was brought on their behalf and

they had no notice that Carrillo would be binding upon

them as to any claim for damages they might have rais-

ed, but which was not raised therein. Due process re-

quires that those arrested be given notice that the Car-

rillo decision would prevent future lawsuits for

monetary claims based on the arrest. Mullane v. Central

Hanover B & T Co., In Sovereign Camp v. Bolin, held

— — — ~~

judgment is res judicata as to all members of the class

who were given the requisite notice and opportunity to

be heard therein. Because of the binding effect given to

the judgment class action the requirements of procedual

due process - notice and opportunity to be heard - are

critically important. In absence of the notification stan-

dards: form, content and manner required by FRCP 23 it

was improper to grant summary judgments based on

the operation of res judicata as a bar.

Contrary to the assertion of the court below, to bind

petitiqners to such a narrowly drafted uncertified suit

allegedly a class action where no notification was given

to potential members of the class certainly violates due

process rights and cannot be deemed a (vindication) of

the mass arrest. The Carrillo decision is not binding on

petitions nor does it fulfill any of the other requirements

for invocation of res judicata.*

Even the three judge court in Carrillo cautioned

respondents that the Carrillo case was on the narrow

issue challenging the facial validity of the penal codes

which was the basis of the criminal prosecution of the

425 arrested on January 23. In ruling upon the motion,

the court did not hear any oral testimony, but, rather

considered only affidavits submitted by both sides. The

court did not conduct a full evidentiary hearing regar-

ding the bad faith allegation set forth in Jackson. Based

on the affidavits the court concluded that the arrests did

not “plainly’’ establish such bad faith application of the

criminal laws to discourage free speech. Petitioners

2. THIS COURT MUST RESOLVE A CLEAR

CONFLICT BETWEEN TWO CIRCUITS -THE

NINTH AND DISTRICT OF COLUMBIA

RESPECTING ITS PRECEDENTS IN

AMERICA PIPE & CONSTRUCTING CO. V.

UTAH.

By memorandum and order dated August I, 1975

District Judge Robert Peckham made a determination

giving class status to the plaintiff’s second cause of ac-

tion. In that cause, the plaintiff’s alleged and the defen-

dant Hayakawa admitted that on or about February 17,

1969, he authorized, distributed and utilized a blacklist

which included the names of all arrestees - students and

faculty alike - as well as those members of the academic

herein must be given the opportunity to present their

case fully, including cross-examining respondents’

witnesses, who were in violation of the standards set

forth in Wood v. Stickland 420 U.S. 308; (1945). Since

the plaintiffs in Carrillo had no such opportunity, Car

rillo cannot be considered a final decision on the merits

to invoke the res judicata doctrine as bar to the mass ar-

rest set forth in the first claim herein. Carrillo does not

in any way preclude a finding that respondents here are

not liable for damages pusuant to the standards set

forth in Wood v. Stickland supra. Under those guide

lines the courts below were required to examine inter

alia the question of whether the California Penal Code

sections were unconstitutional as applied in the arrest in

question. This question was not resolved in Carrillo, but

rather in Re Brown, 9 Cal. 3d 613 (1973).

community who vocally expressed support of the stu-

dent strike and were arrested. The purpose of the list

was to punish those listed by terminating, refusing to

hire or otherwise deny employment at the college to

them.

Clearly, the very existence of the list established

prima facie a violation of the blacklisted persons First

and Fifth Amendment rights. A number of those

blacklisted were in fact denied employment. On that

basis, summary judgment should have been granted to

the plaintiffs. Instead, the Trial Court with the affir-

mance of the Court of Appeals granted summary judg-

ment to the defendants on the grounds that the claim of

the only named plaintiff, Instructor PURSLEY, who

could establish that he was punished was time barred. It

held that PURSLEY’S informal“ efforts to seek

reinstatement* did not meet the ‘timely notice“ re-

quirement for equitable tolling to apply. In so holding,

the Court did not give full regard to-the liberal construc-

tion given the doctrine of equitable tolling by the

More recently, a case analogous on its facts to the

first cause of action in the instant case, but more rele-

vant to the second cause of action on the law, was decid-

ed favorable to the plaintiff in McCarthy v. Kleindienst,

562 F. 2d, 1269 (Ct. of App. Dist. Col., 1977). In that

* «gee Appendix 4 Declaration of Peter Pursley”’

FS AS TES OR Is . atte

case, the plaintiffs sought injunctive relief and

monetary compensation for themselves and for a class

consisting of all persons unlawfully arrested during a

vigil in Washington, D.C.. The suit was filed as a class

action on May 1, 1972 based on tortious acts occuring on

May 3, 1971. The statute of limitation for the tort was

undisputedly recognized as one year. Thus the plaintiffs

filed their suit only two or three days prior to the runn-

ing of the statute. A decision on the defendant’s motion

for a summary judgment was stayed for nearly three

years while the Trial Court awaited a ruling by the Court

of Appeals respecting the same issue in a related case.*

*In the instant case, two other related cases were pen-

ding in the state court which would be determinative of

issues in the instant case. Cf. In Re Brown, et al. on

Habeas Corpus, wherein, respecting the first cause of ac-

tion, the California Supreme Court stated:

There is no substantial evidence sufficient to justify

a finding by the jury that the petitioners or any of them

assembled with the purpose of doing an unlawful act and

separated without doing it or advancing toward it. An

unlawful act within the meaning of Section 407, as the

Attorney General concedes, means criminal conduct

prohibited by state law. The evidence is such that a jury

that they assembled to do an unlawful act is their

presence at and conduct during the demonstration; such

— Aah — eee

When the Court of Appeals ruled ix the related case

favorable to plaintiffs in McCarthy, plaintiff then moved

to have their action certified as a class action. The Court

denied certification. The following day, 266 arrestees

sought to intervene. The Court held their intervention

untimely. On appeal, the Court of Appeals acknowledg-

ed as critical precedent on this issue this court’s decision

in American Pipe and Construction Co. v. Utah, supra.

In that case, this Court stated:

2 We are convinced that the rule most consis-

tent with federal class action procedure must be

that that commencement of class action

the applicable statute of limitations as to all

asserted members of the class who would have

been parties had the suit been permitted to con-

tinue as a class action“. 414 U.S. at 553-54.

This court concluded that the statute of limitations

are “designed to promote justice by preventing sur-

prises through the revival of claims that have been

allowed to slumber until evidence has been lost,

memories faded, and witnesses have disappeared.” 414

U.S. at 554, quoting Order of Railroad Telegraphers v.

Railway Express Agency, 321 U.S. 342, 348 (1944).

presence of conduct cannot logically furnish an inference

that they assembled to do an unlawful act and at the

same time an inference that they did not advance

toward it or accomplish it. 510 P. 2d. 1017 (Cal., June 18,

1973), Cert. denied, 416 U.S. 950 (1974).

In holding that Pursley did not meet the ‘‘timely

notice requirement for the doctrine of equitable tolling

to apply, the courts below wholly disregarded the doc-

trine of equitable tolling as construed by the California

courts.

In holding that Pursley himself had no ad-

ministrative remedies...the only avenue open to him per-

sonally was the courts”, the Court of Appeals has em-

braced a policy which invites aggrieved faculty

members to bring claims involving questions of

qualifications to teach directly to court and which

discourages such persons from seeking academic ad-

ministrative redress of grievances. Such a policy toward

faculty claims which do not involve Title VII of the Civil

Rights Act of 1964 as amended is highly questionable

for the following reasons: such a policy contravenes the

doctrine of exhaustion of administrative remedies which

is especially appropriate for academic exhaustion in in-

stitutions of higher education; such a policy is highly in-

consistent with the broad and longstanding rule of

judicial non-intervention in academic affairs; and such a

policy discourages individual faculty and institutions

from pursuing administrative resolution of academic

disputes in cases where it could be said that established

formal grievance procedures are imperfect.

Even assuming Pursley’s claim was barred by the

statute of limitations, the class claim should not have

been dismissed. As to this claim, a class was certified on

j ͤ EEE

August 4, 1975. The courts below have not responded to

petitioners argument in Franks v. Bowman Transporta-

tion Co., 424 U.S. 747 (1976) where this court held that

although the named representative of a class may no

longer have a personal interest in the outcome of litiga-

tion in a certified class, . the cause of unnamed persons

described in the certification acquired a legal status

separate from the interest asserted by the named

representative.“ The court has dismissed a certified

class designed to protect the rights of those persons who

were denied employment because of the usuage of the

blacklists memos.* However, if this court resolves the

clear conflict between two circuits - the Ninth and the

District of Columbia respecting its precedents in

American Pipe & Construction Co. v. UTAH both the

name representative and the class claims will survive.

3. IT WAS IMPROPER TO GRANT SUMMARY

JUDGMENT WHEN THE FACTS SHOW

PRIMA FACIE CASE OF RACIAL

DISCRIMINATION

*The courts below did not comply with FRCP 23(e) pro-

viding individual notice to all members of the class

before a dismissal. Individual notice to all members of

the class was mandatory and this is just another exam-

ple where the court has once again misconstrued the ap-

plication of Rule 23.

There was sufficient evidence of disparate treat-

ment of those black students employed by THE

BLACK STUDENTS’ UNION to show prima facia a ge-

nuine issue of fact as to the defendant’s intent in

reallocating the student budget to support a trial on the

merits.

Respondent brought this action to redress depriva-

tion of rights guaranteed by 42 U.S.C. 1981 et, seq. and

the Fifth and Fourteenth Amendments to the United

States Constitution. 42 U.S.C. 1983 the Civil Rights Act

of 1871 also known as the Ku Klux Klan Act was passed

pursuant to the Fourteenth Amendment, which pro-

vides that:

No state shall make or enforce any law which

shali abridge the privilege or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, property

without due process of law;

Likewise, 42 U.S.C. 1983 provides:

Every person, under color of any statute, or-

dinance, regulation, custom or usage, of any State

or Territory, subjects, or cause to be subjected,

and 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.

Appellants allege that upon the termination of the

receivership punitive guidelines were imposed on the

student body government by respondent.

The Associated Student organization sets the stage

for student politics at San Francisco State University.

It is a non-profit California corporation organized for the

purpose of providing a student government at the cam-

pus to engage in educational and charitable programs

and activities for the benefit of its members, the

students at San Francisco State. The president of the

Associated Students and all members of the Student

Legislature are freely elected by the students at San

Francisco State at an annual election, traditionally held

in the spring.

Articles II, Governmental Organization, Section 1,

provides for a Board of Directors ultimately responsible

for the maintenance of this association as provided for in

the Articles of Incorporation, which shall meet at least

once annually for the purpose of conducting business ap-

propriate to the Articles. The Board of Directors control

the employment of students of the Associated Student

Government. It composes of nine voting members, one

of whom is a faculty member and another ia a represen-

tative of the university administration.

At the commencement of the Fall semester of 1970.

The Black Students’ Union, like other clubs and

sororities, satisfied the statement of purpose to qualify

as a student body organization. It was a bona fide cam-

pus organization that was officially registered with the

Dean of Students. However, respondents maintained

that because BSU participation in leading the student

faculty strike the Associated Students would no longer

be able to employ Black Students’ Union members.*

The administration appears to have had a twofold

purpose in its direct interference in the Associated Stu-

dent organization, student body organization under the

California Education Code, Sections 1, 23803, 24054,

42401 and 42402. Those purposes were to direct student

funds to less controversial student organizations not-

withstanding that the programs operated by those

organizations - tutorial for urban youngsters of high

school age and remedial reading - were basically uncon-

troversial. Thus, the administration pressed for recogni-

Exhibit 2 in the First Amendment Complaints from

Nancey Schroder Chairman of the Finance Committee

explain to petitioners the reason why minority students

were being prohibited from employment positions. in ad-

dition, answer to interrogatories of Associated Student

President Jon Twichell shows complaints that

respondents were using double standards as it related to

the employment of black students.

tion of athletics and the arts as the basis for student fee

allocations. Cf. Associated Students vs. Board of

Trustees of California State Universities and Colleges,

56 C.A. 3d. 667; 128 Cal. Rptr. 601 (March 29, 1976). The

other purpose was an expectation that the BSU’s

political effectiveness could be diminished if not ex-

tinguished if the community-oriented programs which

made the organization popular amongst students and

faculty members could be curtailed or eliminated. In

pursuit of this latter purpose, it withheld the salaries of

the black students employed in those programs. White

students employed in programs operated by white

operated organizations were not similarly treated.

In the Fifth Claim, appellants allege that

respondents, illegally and in a discriminatory manner,

deprived certain black students and the members of tl.e

Black Students Union salaries for which they were en-

titled pursuant to the Associated Student Budget for

the School Year September 1970-71. In particular, Peti-

tioners have contended that the Twichell Administra-

tion were the appropriate student officers’’ under state

law that was responsible for the allocation of student

funds for the academic year 1970-71. Such student body

officers refused to comply with the discriminatory

guidelines imposed on the student body organizations

and did employ members of the Black Students Union.

Petitioners were hired and performed the work within

their program in their designated position from

September to December, 1970. They were not, however,

compensated for the work performed as were the white

students similarly situated. Respondents did illegally

and without authority misapproriate student fees, in

order to divert the official allocation of monies from

black students employed in the Associated Students

budget 1970-71. The strategy was adopted to prevent

the programmatic participation and employment of

black students union members in retaliation for leading

the strike two years prior.

Table 1 below shows the differential treatment of

black and white students employed by the Board of

Directors of the Associated Students program for the

Fall semester of 1970. Black Students Union members

Bell, Daniels, Frazier, Phillips and Reams were active in

the BSU during and after the strike. This table supports

the BSU allegation that the respondents applied double

standards and that from the period of September, 1970

through December, 1970 the respondents refused to

compensate the black employees for the work they per-

formed that was similiar to the work performed by white

students. The table shows that of the $197,959.00 man-

datory fees made available to the student body govern-

ment, approximately $17,884.00 was allocated for those

students employed in programs categorized as

Associated Student Programs,“ which were the pro-

—

grams developed to provide services to the general stu-

dent body. Of this 817,884.00, the balance sheet ending

December, 1970, which was a part of interrogatory IV C

thru C6 pp 13-14 submitted by respondent DELAND,

shows that of the $11,160 spent for white student

employment at the end of the semester, approximately

$3,623.40 had been spent on the employment of white

students while comparatively disparate treatment was

given to black students, as the same balance sheets

show that of the $6,724.00 allocated for the employment

of blatk students, approximately $ O. was expended by

the end of the semester.

TABLE I

Associated Students Programs

Student Balance Sheet

Employment Government Expenditures

Title Race Allotments Dec. 1970

1. Communication Dir. White $1,612.00 $644.40

2. Performing Arts Dir. White $1,612.00 $796.80

3. Child Care Dir. White $1,612.00 $675.60

4. Students Service Dir. White $1,612.00 $614.40

5. Foreign Students Dir. White $1,900.00 $595.20

6. Draft Counselor White $1,200.00 $297.00

7. Draft Counselor Black $1,200.00 -0-

7 & 8. Legal Fundraisers (2)Black $2,616.00 0

10. Legal Referral Black $1,600.00 ap

11. Proposal Writers Black $1,508.00 0-

Total White Employment 6 $11,160 $3,623.40

Total Black Employment 5 6,724 0

Total Employment 11 $17,884.00 $3,623.40

Source: Evidence obtained from answer to respondent Delands inter-

rogatories II No.2 A p.6, Q p.11. Interrogatory IV No.1 A thru Cs pp 13-14,

Interrogatory No. IV No.2 A thru B(1) p. 15, and answer to respondent

Harkness’s interrogatories III C thru D(1) p.6, Interrogatory V A thru D

pp 9-10, Interrogatory VI A thru R p. 10-14. Plus, the affidavits of Black

Students Union members Phillips, Frazier, Daniels, Bell, Reams submitted

with the original complaint.

Table 2 below: The California Administrative Code,

Article 4, entitled Student Body Organizations, pro-

vides for payment of employment for services in connec -

tion with the general administration of student fee pro-

grams pursuant to applicable salary schedules. This

table proves the number of student officers who were

employed by the student government. It includes a total

of seven, two of whom were black and were not compen-

sated for the work they they performed for the period of

September, 1970 - December, 1970 as the white students

were. Once again we see the disparate treatment given

to black students during this period; such differential

treatment between black and white students in employ-

ment became the basis for the BSU allegation of racial

discrimination.

TABLE 2

Employment of Associated Student Officers

Student Balance sheet

Employment Government Expenditures

Title Race Allotments Dec. 1970

1. Communications Dir. White $1,612.00 $644.40

2. Performing Arts Dir. White $1,612.00 $796.80

3. Child Care Dir. White $1.612.00 $675.60

4. Foreign Student Dir. White $1,900.00 $595.20

5. Student Activities Dir. White $1,612.00 $614.00

6. Tutorial Coordinator Black 981.00 0

7. Tutorial Clerk Typists Black 8 981.00 0

Employed Student Officers:

Total white employment 5 $8,348.00 $3,326.00

Total black employment 2 $1,962.00 0

Total Employment of Officers 7 $10,310.00 $3,326.00

Source: The same sources of data compiled from Table 1, in addition to the

affidavits of Black Students’ Union members Donald Craig and Scottie

Dawson attached to the original complaint.

Table 3: At the commencement of the Fall semester,

1970, the first persons employed are the Associated

Students staff who do the administrative work for the

student body organization. This table shows the

disparate treatment of black student Charles Jackson,

who was employed by the student government, but the

administration would not allow this Black Students’

Union leader to receive his salary as did the white

students who were similiarly situated.

TABLE 3

Associated Student Staff Employees

Employment Student Expenditure Bal.

Title Race Allotment Sheet Dec.70

L. Administrative

Assistant White $2,280.50 $1,892.30

2. Secretary White $5,349.25 $1,566.61

3. Coordinator of

Student Programs Black $2,847.60 0

Source: The information and data compiled in Table 1, in addition the af -

fidavit of appellant Charles Jackson of the original complaint

Respondents failed to show that these factual issues

were not in dispute. They made reference to certain

vague answers to interrogatories which show that funds

were allocated to BSU members as shown in Tables 1, 2

and 3, but they failed to demonstrate their significance

in connection with the BSU allegation of the double

standards in employment. It is the burden of the moving

party to present information that clearly demonstrates

that there is no factual dispute regarding the matter

upon which summary judgment is sought. It is often

said that the motion must show that there is no ge-

nuine issue as to any material fact (see Federal Rule

56c.) Here the moving party and the courts below failed

to address themselves to the issue of racial discrimina-

tion in employment. Summary judgment is a harsh

method of deciding this case. It denies petitioners their

day in court. |

The courts beiow have exhibited a steadfast deter-

mination not to address the actual issues raised in the

Fifth Cause of Action. Instead, they urge that

discrimination cannot take place where some benefit has

been received by a minority group. Discussing

hypothetical situations that bear no relevance to the

issue raised by petitioners. In support of the motion for

summery judgment, the court referred to general

answers to interrogatories relating to the budgets and

never did cite a specific interrogatory. The court did not

address itself to the issue of racial discrimination in

employment. We do not believe that these factual issues

can be resolved by reference to general exhibits attached

to answers to interrogatories. Respondent did not

satisfy their burden of showing the absence af any ge-

nuine issue of material fact, and were not entitled to

summary judgment. Neither the Court below nor

respondents have considered that petitions, were hired

by the student government officials as were the white

students similarly situated and as affirmed by the stu-

dent budget of September, 1970 - December, 1970, per-

formed work from September to December of 1970 just

as did their white counterparts hired by the student

organization. Yet, only these black students each of

whom were members of the Black Students Union were

not paid for the work they performed. The failure to pay

petitions is no less illegal and no less discriminatory

because the Black Students Union received funding.

To grant summary judgment in this instance is to

evade important fundamental constitutional issues of

due process and equal protection rights, and widely

departs from the accepted course of judicial proceedings

for granting summary judgment motions.

A genuine issue of fact therefore existed

respecting the motivation of the College Ad-

ministration for the disparate treatment of black

students Cf. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (19793).

Even assuming the disparate treatment was

retaliatory, it constituted an abridgement of the

black students constitutional rights under the

First, Fifth and Fourteenth Amendments. Cf.

Healy v. James, 408 U.S. 169, 198 (1972).

CONCLUSION

For these reasons, a writ of certiorari should

be granted.

APPENDIX 1

OPINION IN THE APPEAL FROM THE UNITED

STATES DISTRICT COURT TO THE NINTH CIR-

CUIT COURT OF APPEALS

Before: TRASK and ANDERSON, Circuit Judges, and

WYATT, District Judge.

ANDERSON, Circuit Judge:

This civil rights case arose from the campus turmoil

which occurred at San Francisco State College (now

known as California State University, San Francisco) in

late 1968 and early 1969. The district court granted

summary judgment in favor of the defendant college of-

ficials. The plaintiffs (a former instructor and students

at the college) appeal, raising questions involving the

statute of limitations, res judicata, and the sufficiency

of their pleadings. We affirm in part and reverse in part.

BACKGROUND

In the fall of 1968 the Black Students’ Union in-

itiated a student-faculty strike at San Francisco State

College (College). On January 23, 1969, there was a rally

had been imposed earlier by S. I. Hayakawa, the then

President of the College. After the rally had begun, one

of the College officials attempted to have the crowd

disperse. A San Francisco police officer then informed

the crowd that the meeting was unlawful and ordered

everyone to leave the area. After these warnings were ig-

nored, the police arrested over four hundred people. All

of those arrested were charged with violations of Califor-

nia Penal Code §§ 408 (unlawful assembly), 409 (failure

to disperse), and 415 (disturbing the peace).

A number of suits were filed as a result of these ar-

rests and the disciplinary proceedings which were con-

ducted by the college. 1/ In Carrillo uv. Hayakawa, No.

C-50808 (N.D. Cal. June 27, 1969), a declaratory judg-

ment action was filed on behalf of all those arrested,

challenging both the constitutionality of the state

statutes under which everyone was arrested, and their

application. A three-judge federal court rejected both

arguments. There was no appeal. The district court held

the statutes were not unconstitutional on their face and

also were not enforced in bad faith so as to discourage

plaintiffs from exercising their First Amendment rights.

In Wong v. Hayakawa, No. 50983 (April 24, 1969), the

disciplinary proceedings conducted by the College were

challenged. The district court found that the arrested

students were given notice and a sufficient hearing to

meet procedural due process notice and hearing re-

quirements. It found, however, that due process was

violated in the limited instance where the decision to

discipline was based solely upon a police report that did

not show any evidence of misconduct on the part of the

plaintiffs. The court then issued an affirmative injunc-

tion, ordering the University to expunge from plaintiffs’

school records all reference to disciplinary action and to

reinstate plaintiffs as students. The court also sug-

gested that the same be done for all students who were

disciplined solely on the basis of the police report. This

court, on appeal, affirmed the order of the district court,

Wong v. Hayakawa, 464 F.2d 1282 (9th Cir. 1972), cert.

denied, 409 U.S. 1130 (1973).

The present action was originally filed on March 21,

1972. The first complaint was filed by one former black

student and two black student organizations. Amended

complaints adding plaintiffs and new claims were subse-

quently filed. It was determined that the action might

be maintained as a class action in respect of the second

of the five claims, but not otherwise (Fed. R. Civ. P.

23(c)(1)). The court below granted summary judgment

on all five claims of the Third Amended Complaint

which had been filed on December 17, 1975.

The plaintiffs appeal from the adverse judgment on

four of their claims. One claim involves the allegation

that the mass arrests were unconstitutional. Another

deals with a blacklist circulated at the College which

barred all those arrested from employment. The third

claim stems from the College disciplinary proceedings

against those arrested. And the final claim on appeal in-

volves allegations by black students who allegedly were

not paid for work performed for the Coilege. Since each

claim implicates different issues, we address each

separately.

DISCUSSION

Standard of Review

In reviewing the summary judgment granted by the

court below, this court will affirm the judgment only

when it appears ‘‘that there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

The record and the inferences derived therefrom are

reviewed in the light most favorable to the non-moving

party. Great Western Bank & Trust v. Kotz, 532 F.2d

1252, 1254 (9th Cir. 1976); 10 Wright and A. Miller,

Federal Practice and Procedure (West 1973), Section

2716.

Mass Arrests

This, the first claim, is based on the arrests of the

people who attended the campus rally on January 23,

1969. Plaintiffs Greene and Simmons brought it as a

class action on behalf of all those who were arrested at

the rally. The essence of this claim is the allegation that

the College officials, along with the San Francisco

Police, engaged in a conspiracy to deprive the plaintiffs

of their First Amendment rights by having them ar-

rested. In turn, this is dependent upon the implicit

assertion that the statutes under which the arrests were

made (§§ 408, 409, and 415) were applied without good

faith and for the purpose of depriving plaintiffs of their

First Amendment rights.

The court below granted summary judgment on this

finding that it was either barred by the statute of limita-

tions or res judicata. Because we find ample grounds to

support summary judgment based on principles of res

judicata, we do not decide whether summary judgment

was appropriate under the alternative ground of the

statute of limitations.

In Carrillo v. Hayakawa, No. C-50808 (N.D. Cal.,

June 27, 1969), a three-judge federal court rejected a

similar challenge to the validity of the mass arrests. The

plaintiffs in Carillo brought their suit on behalf of

themselves and others similarly situated challenging the

constitutionalty of the January 23 arrests. The court

found that the arrests under §§ 408, 409, and 415 had

not been conducted in bad faith. {

Under the principles of res judicata, a judgment on

the merits in a prior suit bars a second suit involving the

same parties or their privies based on the same cause of

action. Parklane Hosiery Co. v. Shore. JT. 8

L. Ed. 2d 552, 559 n.5 (1979); Hooker v. Klein, 573 F.2d

1360, 1367 (9th Cir. 1978), cert. denied, 439 U.S. 932 58

L.Ed.2d 327. On appeal, the plaintiffs argue that Car-

rillo 3/ did not involve either the same cause of action or

the same parties. 4/

The plaintiffs concede that Carrillo presented and

decided the issue of whether the California criminal

statutes which were used in the mass arrests were ap-

plied unconstitutionally and in bad faith to discourage

the First Amendment rights of free speech and

assembly. Nonetheless, the plaintiffs contend that the

question of whether the California criminal statutes

were unconstitutional as applied to the arrests in ques-

tion“ was not resolved in Carrillo. We are unable to

perceive any meaningful distinction between the issue

decided in Carillo and the issue presented in the present

case. The rights sought to be vindicated remain the

same, the passage of the years has not altered their

character in any way. Both cases arose out of the mass

arrests which occurred on January 23, 1969. Although

damages are sought here, whereas declaratory relief was

sought in Carrillo, the issues are identical. Cambist

Films, Inc. v. Duggan, 475 F.2d 887, 890-891 (3d Cir.

1973) (Van Dusen, J., concurring). Both cases involved

the question of whether the defendants had applied the

California criminal statutes in bad faith in violation of

the constitutional rights of those arrested.5/

Plaintiffs argue that the parties to the Carrillo suit

are not the same as those involved in the present case.

They claim that Carrillo involved different plaintiffs. 6

Although the named plaintiffs may have been different,

we otherwise disagree with this contention. Initially,

courts are no longer bound by rigid definitions of the

parties or their privies for the purposes of applying col-

lateral estoppel or res judicata. See Montana v. United

States,. U. S.. 59 L.Ed.2d 210, 216-218 (1979); and

Green v. Ancora-Citronelle Corp., 577 F.2d 1380,

1383-1384 (9th Cir. 1978). Carillo was brought on behalf

of all those who were arrested on January 23 at the Col-

lege; It was brought as a class action and treated by the

court as a class action. 7/ Virtually all of those arrested

were represented by counsel in the Carrillo case. 8/The

plaintiffs fail to raise any other arguments as to why

this claim should not be barred by res judicata. See Mon-

tana, supra, 59 L.Ed.2d at 222-223.

Based on the principles of res judicata, we conclude

that summary judgment was properly entered on plain-

tiffs’ first claim. 9/

The Blacklist

The second claim for relief is based on the blacklist.

Hayakawa had a list of all those who had been arrested

prepared and circulated throughout the College. In an

attached cover letter, signed by Hayakawa, it was ex-

plained that anyone whose name appeared on the list

would thereafter be ineligible for employment at San

Francisco State.

This claim was brought on behalf of all those whose

names had appeared on the blacklist and who had been

denied employment as a consequence of such listing. On-

ly one named plaintiff, Peter Pursley, was found to have

standing. Pursley was employed as a psychology in-

structor in the fall of 1968, but was not rehired for the

following semester. Pursley did not become a plaintiff

until December 1975.

The court below found that Pursley’s claim was bar-

red by the statute of limitations since he was notified

that his employment was terminated on March 12, 1969,

and the present action was not filed until March 21,

1972.

Since §1983 does not contain its own statute of

limitations, federal courts look to the state statute of

limitations which applies to the most similar state cause

of action. Bradshaw v. Zoological Society of San Diego,

569 F.2d 1066, 1068 (9th Cir. 1978); Briley v. State of

California, 564 F.2d 849, 854 (9th Cir. 1977). When a

§1983 cause of action is brought in California, §338 (1) of

the California Code of Civil Procedure applies.

Bradshaw, supra 569 F. 2d. at 1068; Briley, supra 564.

F. 2d at 584. This provides for a three year limitation

854. This provides for a three-year limitation period.

Pursley received notice of the termination of his

employment on March 12, 1969, and the present action

was filed on March 21, 1972. At first glance it appears

that his action is time barred. However, Pursley’s

department chairman filed an administrative grievance

on Pursley’s behalf in an attempt to have him

reinstated. The final disposition of this informal pro-

ceeding did not occur until August 12, 1969. Plaintiffs

argue that this administrative procedure tolled the

statute so that the period ran until August 12, 1972.

Although federal courts borrow state statutes of

limitations in §1983 actions, there is some confusion as

to whether state or federal law determines when the

claim accrues and whether the statute is tolled. Brad-

shaw, Supra, 569 F.2d at 1068; and compare Briley,

supra, 564 F.2d at 854-855, with Johnson v. Railway Ex-

press Agency, 421 U.S. 454 (1975), and William v.

Walsh, 558 F. 2d 667 (2d Cir. 1977). We need not address

this question because the result reached here would be

the same under either California or federal law.

Under California law, there is no statute which

would toll the limitations period in this case. Therefore,

plaintiffs must rely upon the doctrine of equitable toll-

ing which has been developed by the California courts.

See Addison v. State, 578 P.2d 941 (Cal. 1978); Elkins v.

Derby, 525 P.2d 399 (Cal. 1944). The doctrine’s re-

quirements are: ‘‘timely notice, and lack of prejudice, to

the defendant, and reasonable good faith conduct on the

part of the plaintiff. Addison, supra, 578 P.2d at

943-944. We do not need to look any further than the

doctrine’s first requirement. The pursuit of an informal

administrative review seeking reinstatement, brought

by someone other than the plaintiff, does not serve as

timely notice that the plaintiff will bring a damage ac-

tion under §1983, particularly where, as here, the plain-

tiff does not formally enter the §1983 action until six

years after his employment was terminated. We are

aware of no California decision granting relief from the

limitations period in similar circumstances.

Plaintiffs cite no federal cases which would support

a finding that the statute was tolled in the present case.

The Supreme Court held that the filing of a Title VII

employment discrimination charge with the Equal

Employment Opportunity Commissio did not toll the

limitatinos period for filing a § 1983 action based on the

same facts. Johnson, supra, 421 U.S. 454. In Bireline v.

Seagondollar, 567 F.2d 260 (4th Cir. 1977), petition for

cert. filed, U.S.. 48 U.S.L.W. 3047 (1979), the

Fourth Circuit, apparently applying federal law, refused

to toll the statute of limitations in an almost identical.

factual situation. After being notified that she would

not be rehired, a university instructor personally pur-

sued her administrative remedies in Bireline. She was

denied relief and that brought the §1983 action which

was found time barred despite the administrative pro-

ceedings. 10/

If any claim supports the use of the statute of

limitations, the present one does. The plaintiffs initially

slept on any rights they had until after the three-year

statute of limitations had run. Pursley, the only plaintiff

entitled to relief under this claim, was not brought into

the suit until another three years later (six years after

his claim accrued). And it is now ten years after the facts

giving rise to the claim occurred.

Pursley himself had no administrative remedies.

After he received notice of his termination, the only

avenue open to him personally was the courts. The ad-

ministrative procedure involved here was informal. It

was brought not by Pursley but by his department

chairman We are not dealing with a case where the plain-

tiff pursued an administrative remedy afforded by

statute. As the Supreme Court has observed:

Although any statute of limitations is necessarily

arbitrary, the length of the period allowed for in-

stituting suit inevitably reflects a value judgment

concerning the point at which the interests in favor

of protecting valid claims are outweighed by the in-

terests in prohibiting the prosecution of stale ones.

Johnson, supra, 421 U.S. at 463-464. We believe that

any merit“ to the plaintiff’s claim is sufficiently

outweighted by the competing policy interest of protec-

ting defendants from stale claims.

Thus we conclude that Pursley’s claim was time bar-

red whether state or federal tolling law is applied.

Plaintiffs argue that even if Pursley’s claim is time

barred, the second claim was still improperly dismissed.

Relying upon Franks v. Bowman Transportation Co.,

424 U.S. 747 (1976), and East Texas Motor Freight

System, Inc., v. Rodriguez, 431 U.S. 395 (1977), they

reason that the claims of class members are not mooted

or destroyed merely because the claim of the named

plaintiff is denied. Those cases are clearly

distinguishable. Both Franks, supra, and East Texas

Motor Freight, supra, involved the mootness question

under the ‘’case or controversy” requirement of Article

III. With the mootness issue the Court was con-

cerned with the problem which arises because of the

changes occurring to the plaintiff’s position in the litiga-

tion. The plaintiff had initially stated a good cause of ac-

tion but, because of the passage of time, may no longer

need the remedy sought as there may no longer be a

remedy available. With the statute of limitations we are

concerned with the problems which arise because of the

plaintiff’s delay in bringing suit initially, not changes

occurring after suit is filed.

Due to the infirmity caused by the running of the

statute of limitations, the court below properly entered

summary judgment on the plaintiffs’ claim based on the

blacklist.

Disciplinary Proceedings

This, the third claim, is based upon the disciplinary

proceedings brought by the College against those ar-

rested at the January 13 demonstration. In their com-

plaint, the plaintiffs alleged that their due process rights

were violated because of the method used to select

— eee . — soonest:

members of the faculty hearing panels, the failure to

adequately separate the adjudicatory and prosecutorial

roles, Hayakawa’s bias, and inadequate notice of the

charges against them. The court below granted sum-

mary judgment, finding that plaintiffs’ claims were bar-

red by the prior suit of Wong v. Hayakawa, No. C-50983

(N.D. Cal.), where other students had challenged these

Plaintiffs have conceded that Wong controls the

specific due process violations which they had claimed

in their complaint. Nevertheless, they contend that they

should enjoy the benefits as well as the burdens of the

application of res judicata. While Wong found that

minimum due process requirements had been satisfied

by the disciplinary proceedings, that case also held that

there was a due process violation in those cases where

students had been disciplined based solely upon a police

report that did not provide sufficient evidence to sustain

a finding of misconduct. We agree with plaintiffs and

believe that res judicata principles entitle them to affir-

matively rely upon the limited due process holding of

Wong.

While acknowledging their failure to raise this pro-

perly in their pleadings, plaintiffs contended that since

they raised it in their motion for summary judgment,

they shoud have been allowed to incorporate it by

amendment under Fed. R. Civ. P. 15(b).

We agree with the plaintiffs. 11/ While we do not

condone the type of inartful pleading which occurred

here, we believe that the principles of res judicata and

the interest in prior judgments are of more importance

than the pleading rules in the present case. 12/

Funding of the Black Students Union

Appellants’ fifth claim is brought by various individual

plaintiffs employed by the Black Students Union (BSU),

who allege that the BSU received inadequate funds to

pay their salaries because of the BSU’s involvement in

the campus disorders. Appellants do not challenge the

following findings where were made by the district

court:

1) The demands for money by various student

groups exceeded available funds;

2) The BSU, along with other minority groups, did

receive funds; and

3) The BSU received much more than most

groups, and in fact received a dispropor-

tionate ly large share of the available funds.

C.R. 447. Consequently, we must also agree with the

conclusion that:

.. there is no evidence that the BSU, which reciev-

ed proportionately more funding than it would be

entitled to, was subject to discrimination in

budgeting, regardless of what its ‘expectations’

might have been and what promises might have

been made.

C.R. 447. Summary judgment was properly entered on

appellants’ fifth claim for relief.

The district court’s summary judgment is AF-

FIRMED on the mass arrest (first), blacklist (second),

and failure to pay the black students’ claims (fifth)

claims. The summary judgment is REVERSED on the

disciplinary proceeding (third) claim.

FOOTNOTES

1/ In addition to the two federal cases discussed

in the text, the California Supreme Court over-

turned the criminal convictions of some of the

students who were arrested. In re Brown, 510

P.2d 1017 (Cal. 1973), cert. denied, 416 U.S. 950

(1974). The court granted the petitioners’ writ of

habeas corpus finding that there had been er-

roneous jury instructions under §415, and that

there was no substantial evidence to support con-

victions under §§407 and 408.

2/ The relevant part of the Carrillodecision provides

as follows:

As noted earlier, plaintiffs also move for a

declaratory judgment that §§ 408, 409 and 415

have been applied without just cause for the pur-

pose and with the effect of discouraging the exer-

cise of free speech and assembly. There is no

evidence in the record plainly establishing

abusive invocation of the state criminal laws for

such purposes. Although some plaintiffs have

52 | | 53

ferent motions is the same for res judicata pur-

submitted affidavits making such allegations and poses:

cliaming a chilling“ of their First Amendment

rights, those declarations have been controverted “Is the same right infringed by the same wrong?

by the defendants. The record is insufficient to

| Would a different judgment obtained in the se-

warrant the granting of such relief.” cond action impair rights under the first judg-

ment? Would the same evidence sustain both

Carrillo, supra, at 9-10.

judgments?”’

3/ Plaintiffs also argue that the Carrillo decision Astron Industrial Associates, Inc. v. Chrysler

was not decided on the merits’’ since the court | 1 er e dene 3 Cir.

; 8 ‘ " on of this test to the present case

there had relied upon affidavits in denying the re- | Are

quested declaratory relief. No authority is cited | would yield the same result as we reach.

ee ee e of 2 70 which would support this | 6/ Plaintiffs also claim that the defendants are

Con. Summary J udgment may be decided not the same. The present suit is brought against

on the basis of affidavits; nonetheless it still is a Hayakawa and other officials of the College. Car

judgment on the merits. rillo was against Hayakawa, the San Francisco

4/ Plaintiffs’ arguments against the application Chief of Police, and District Attorney, and their

of resjudicata remind us of the following observa- agents and employees. The deletion of some

tion made by the late Judge Lemmon of this defendants from the prior suit, where their in-

court: terests and involvement were sufficiently similar

Because there must be an end to litigation, | to that of the defendants named in both suits, and

the legal principle of res judicata is a salutary one : 3 eee e- ue . een

and should be freely applied,’ says the successful | 7 3 pp

litigant. | of res judicata.

Ves, but-’, replies his adversary, ‘yes, but : 7 / Since Carrillo was never certified as a class

-e different. As to N Seaped udicata should | action, plaintiffs argue that it should not be con-

not be invoked because, ‘etc. sidered in that light. In view of the considerations

: ; ; set forth in the text, we believe that this would

Robinson vb. Sidebotham, 243 F.2d 16, 17 (9th Cir. elevate form over substance, which we decline to

1957), cert, denied, 355 U.S. 867. des te thle cain. .

5 / The Fifth Circuit uses the following test for PAP :

determining whether the substance of two dif- 8/ The district court found that virtually all of

10/

those arrested were represented by counsel or had

their interests represented by the public defender

who was representing 400 of those who had been

arrested. Plaintiffs do not challenge this.

Plaintiffs in the present case are in less of a

position to complain than some parties who have

been bound by the doctrine of virtual representa-

tion. The Fifth Circuit explained this as follows:

Under the federal law of res judicata, a person

may be bound by a judgment even though not a

party if one of the parties to the suit is so closely

aligned with his interests as to be his virtual

representative.

Aerojet- General Corporation v. Askew, 511 F. 2d

710, 719 (5th Cir. 1975), cert. denied, 423 U.S. 908

(and see the exhaustive list of cases cited therein

where this has been applied).

The court reasoned as follows:

„While plaintiff was granted an ad-

ministrative hearing after May 19, 1970, and it

may have been appropriate for her to have

delayed filing her complaint until after its conclu-

sion, the pendency of the administrative recon-

sideration did not create a new cause of action; it

only made it apparent that if she were to obtain

relief it could only come as a result of a successful

lawsuit commenced within three years following

May 19, 1970.”’

Bireline, supra, 567 F.2d at 263.

—

— 2 —— 2

—— — — Ee ͤ Üwb!ͤ2— —— 2 —

8 1 Fst: 3 =

11/

Defendants raise two additional arguments in

support of summary judgment in their favor.

First, they claim that the representative

plaintiffs were not disciplined by the College and

so lacked standing to bring this suit. Plaintiffs

controvert this and claim that the named plain-

tiffs were either placed on probation or

reprimanded. We believe that this sufficiently

states a distinct and palpable“ injury so as to

confer standing. Warth v. Seldin, 422 U.S. 490,

501 (1975). Since a dispute exists as to whether

the plaintiffs were disciplined, summary judg-

ment cannot be based on this ground.

And second, defendants claim the plaintiffs cannot

show that the College officials conducted the

disciplinary proceedings in bad faith which is necessary

to support a §1983 claim. Wood v. Strickland, 420 U.S.

308, 322 (1975). We note that neither Wong nor the

court below addressed this specific issue, and so sum-

mary judgment cannot be upheld on this basis.

12/ We believe this result is consistent with the

underlying purposes of res judicata which rest

“upon considerations of judicial time and public

policy favoring the establishment of certainty in

legal relations.” Commissioner v. Sunnen, 333

U.S. 591, 597 (1948).

FFF ET ee w; de>

APPENDIX 2

ORDER GRANTING SUMMARY JUDGMENT

The complaint at hand alleges five claims for relief,

all of which arise in one form or another from a period of

campus unrest at what was then San Francisco State

College (SFSC) during 1969 and 1970. The original com-

plaint in this action was not filed until March 21, 1972;

the defendants’ present motion for summary judgment

is directed to the third amended complaint, filed

December 17, 1975. Relief is sought under 42 U.S.C.

§§1981, 1983 and 1985, and under California law by way

of pendent jurisdiction.

THE FIRST CLAIM

The first claim is brought by Greene and Simmons

on behalf of a class consisting of 452 persons who at-

tended a campus rally on January 23, 1969, and who

were arrested at that rally after an order to disperse had

been given. Those arrested were charged with unlawful

assembly, failure to disperse, and disturbing the peace.

The plaintiffs allege that those arrested were deprived of

their rights under the First and Fourteenth Amend-

ments.

It is quite clear, and in fact plaintiffs have

themselves argued, that the applicable statute of limita-

— . —— *

628

— 2 —äœ—ä—äG ee eee, *

tions for these civil rights actions is three years.

Donovan v. Rienhold, 433 F. 2d 738, 742 (9th Cir. 1970).

In this case, the alleged deprivation of rights occurred

when the arrests were made, on January 23. 1969, and

the suit was not filed until March 21, 1972, more than

three years after the arrest. Accordingly, the first claim

is barred by the applicable statute of limitations.

red by the applicable statute ot limitauons.

The plaintiffs’ assertion that the statute of limita-

tions was tolled pending the outcome of the action In re

Brown, 9 Cal.3d 612 (1973), is without merit. As in-

dicated below, the legality of the mass arrest was upheld

in Carrillo v. Hayakawa, (N.D. Cal. 1969, No. C-50808);

Brown was concerned only with the propriety of certain

of the convictions resulting from the arrests, not with

the arrests themselves. Therefore, the Brown case was

not dispositive of the issues in this case, and a federal

court hearing an action challenging the arrests would

not be required to abstain -- indeed, Carrillo, rather than

abstaining, did consider and dispose of the arrest issues

in this case. Moreover, plaintiffs’ cases, e.g. Fulford v.

Klein, 529 F.2d 377 (5th Cir. 1976), in which §1983 were

not allowed while state habeas corpus writs were

available, or while appeal from a conviction was pen-

ding, all involved situations in which a convicted and im-

prisoned individual who sought relief pursuant to §1983

had not yet exhausted his habeas and appeal remedies.

In the instant case, none of the plaintiffs were involved

in the Brown convictions, and there is no indication that

any of them were imprisoned, so as to have precluded a

81983 claiin for a sufficient period of time to affect the

statute of limitation issue. But most importantly, the

chief case relied upon by plaintiffs itself precludes their

argument. In Fulford, the court expressed concern that

the statute of limitations might become a problem if the

$1983 action were dismissed, and suggested that it

should be allowed to remain in court, but be held in

abeyance pending the state action (at P. 382). Thus it

clearly allowed the filing of a §1983 action to preserve

the claim against the statute of limitations, vitiating

plaintiff's argument that they were precluded from fil-

ing suit.

In addition, it would appear that the asserted claims

are precluded, under the principle of res judicata, by the

holding of the three judge district court in Carrillo v.

Hayakawa, supra. Carrillo was a suit brought as a class

action on behalf of all persons arrested on January 23,

1969, seeking: i) a declaratory judgment striking down

as unconstitutional those statutes upon which the ar-

rests were based, or ii) a declaratory judgment holding

that those statutes were enforced unconstitutionally

and in bad faith for the purpose and with the effect of

discouraging free speech and assembly. The Carrillo opi-

nion clearly held that the statutes were not unconstitu-

tional on their face and that they were not used to

discourage free speech and assembly. Although Carrillo

—— — — ade.

——— — —̃ ——

——ũ——É—ͤ—

—— — K 2 —

was not certified as a class action, it was clearly treated

as such. In any event, the application of res judicata

does not depend upon certification where as here, the in-

terests of the parties to the action are 80 closely aligned

with the interests of non -· parties as to make the former

virtual representatives of the latter. Aerojet-General Cor

v. Askew, 511 F.2d 710, 719 (5th Cir. 1975). In this case,

virtually all of those arrested were either represented by

counsel or had their interests represented by counsel in

Carrillo(the public defender represented 400 of those ar-

rested). Accordingly, because the Carrillo court vin-

dicated the mass arrest (to be distinguished from the

subsequent convictions, some of which were overturned

in In re Brown, supra), the first claim is also barred as res

judicata.

Plaintiffs, however, contend that because res

judicata and the statute of limitations are affirmative

defenses, defendants’ failure to plead them amounts to

a waiver. F.R.C.P. Rule 8. This contention must be re-

jected for two reasons. First, as indicated by Wright and

Miller, Federal Practice and Procedure: Civil, §1277

(1969), a court may permit affirmative defenses to be

asserted by motion, especially where the defenses seem

likely to dispose of the entire case or a significant por-

tion of the case. Thus, in Suckow Borax Mines Consol,

Inc. v. Borax Consol Ltd., 185 F.2d 196, 204-205 (9th Cir.

1950), it was held that affirmative defenses, although not

appearing in the pleadings, may be established upon a

motion to dis:aiss or a motion for summary judgment,

when, by a‘fidavits or otherwise, a set of undisputed

facts is revealed upon which the moving party is entitled

to judgment as a matter of law.

Second, pursuant to F.R.C.P. Rule 15(a), this Court

has discretion to allow defendants to amend their

answer to this, the third amended complaint, filed

February 4, 1976, to allege these affirmative defenses.

Requiring defendants to go through the motions of

amending their pleadings would, under the cir-

cumstances, be an empty exercise which would not af-

fect the result; accordingly the Court will treat the affir-

mative defenses as though they had been pleaded.

United States v. United Air Lines, 216 F.Supp. 709, 711

(Nev. 1962), where the court, recognizing the futility of

allowing res judicata to be raised initially by motion for

summary judgment when the party could properly raise

it by amending the pleadings, permitted res judicata to

be raised on a motion for summary judgment. The

soundness of this action is supported by the fact that

both parties have had full opporutnity to argue the

merits of the two affirmative defenses and have do so ex-

tensively, eliminating any claim of surprise or prejudice.

THE SECOND CLAIM

The second claim is brought by Daniels, Greene,

Simmons and Pursley on behalf of all persons whose

———⏑ꝑäUib

names allegedly appear on certain lists compiled by

defendants for the purpose of denying them employ-

ment at SFSC on account of the January 23, 1969, ar-

rests. Plaintiffs have conceded that under Paul v. Davis,

424 U.S. 693 (1976), the mere compilation of such a list,

absent actual loss of employment, does not state a claim

under the Act, and that this precludes the claims of

Daniels, Greene and Simmons. With respect to Pursley,

who taught in the Fall of 1968 but, allegedly because of

the blacklisting“, was not rehired in the Spring of

1969, any claim is barred by the three year statute of

limitations. Pursley was informed, on March 12, 1969,

that he would not be rehired; since the complaint was fil-

ed on March 21, 1972, the claim is barred by the statute.

Plaintiffs have attempted to avoid this conclusion

by arguing that the statute of limitations was tolled

from March 13, 1969, until August 12, 1969. On March

13, a Dr. Rauch instituted a grievance hearing on behalf

of Pursley. The grievance committee recommended that

Pursely be rehired and paid for the work he had perform-

ed during the Spring 1969 semester. On August 12,

1969, Dr. Hayakawa refused to follow the panel’s recom-

mendation. Plaintiffs argue that the statute was tolled

during the grievance procedure and until Dr.

Hayakawa’s action on August 12. While it is true that a

statute of limitations may be tolled during certain ad-

ministrative proceedings, that principle has no applica-

tion in this case. The grievance procedure in effect at

SFSC at the time provided that a grievance could be

maintained only by members of the faculty or ad-

ministration, and Pursley was neither. That Dr. Rauch

took it upon himself to file a grievance in an attempt to

have Pursely rehired, while perhaps commendable, did

not result in an administrative remedy being available

to or invoked by Pursely himself, and hence the statute

was not tolled.

The California cases cited by plaintiffs are clearly

distinguishable from the instant situation. In Elkins v.

Derby, 12 Cal. 3d 410 (1974), Myers v. County of Orange,

6 Cal.App. 3d 626 (1970), and other cases cited, the plain-

tiff himself pursued administrative remedies which were

in fact available to him. As indicated above, in the pre-

sent case, the grievance procedure here was not

available to Pursley, and was pursued by someone other

than him. Moreover, the recent Supreme Court decision

in Johnson v. REA, 421 U.S. 454 (1975), indicates tha the

statute of limitations for a §1983 action is not readily

tolled by administrative remedies. In Johnson, the Court

held that the timely filing of an administrative charge

with the EEOC pursuant to Title VII did not toll the runn-

ing of the statute of limitations applicable to an action

based on 42 U.S.C.§1981. See also, Guy v. Robbins and

Myers, Inc., 45 U.S.L.W. 4068 (1976).

THE THIRD CLAIM

The third claim is brought by Daniels, Greene,

Jenkins and Simmons on behalf of all students arrested

on January 23, 1969, and against whom disciplinary pro-

ceedings were initiated as a result. The complaint

alleges that plaintiffs were deprived of a fair hearing, in

violation of their Fifth and Fourteenth Amendment

rights, by the process by which members of the faculty

hearing panels were selected, by the failure adequately

to separate prosecutorial and adjudicatory roles, by

Hayakawa’s bias, and by inadequate notice of the

charges lodged.

Once again, plaintiffs are barred by a prior suit. In

Wong v. Hayakawa (N.D. Cal. No. 50983), a number of

students challenged these same disciplinary pro-

ceedings. Judge Zirpoli cited Scoggin v. Lincoln Univer-

sity, 291 F.Supp. 161, 171 (W.D. Mo. 1968), for the pro-

position that the minimal due process requirements in

student discipline cases were 1) that adequate notice be

given of the charges and evidence; 2) that an opportuni-

ty for a fair hearing be given the student; and 3) that no

disciplinary action be taken on grounds not supported

by substantial evidence. Judge Zirpoli expressly found

that the first two requirements had been satisfied in the

disciplinary proceedings in question, but that the their

requirement was not met as to the particular plaintiffs in

the Wong case, because the only evidence relied on in im-

posing discipline on them was in inadequate police

report. Since the present case does not allege that there

was a similar inadequacy of evidence but rather

challenges only the same notice and hearing procedures

which were upheld in Wong, the claim is barred by the

prior suit.

THE FOURTH CLAIM

The fourth claim is brought by Jackson, Bell, Reams

and Jordan on behalf of all candidates for election to

student office in 1970 as members of certain slates.

These candidates were declared ineligible to run for of-

fice by student Mark Wolfe, the election committee

chairman. Plaintiffs disputed this decision but the Stu-

dent Legislature upheld it. Plaintiffs then asked

Hayakawa to delay the election and resolve the issue of

eligibility, which, after an administrative hearing, he

refused to do. Plaintiffs now allege that Hayakawa was

biased in his ruling.

Once again, an earlier action is dispositive. In Bull-

Moose Party v. Hayakawa, (N.D. Cal. No. C-70835 RFP)

certain plaintiffs sought a preliminary injunction to pre-

vent the same student body elections at SFSC in April of

1970. Judge Peckham concluded that the issues were

moot or about to become moot, and dismissed the ac-

tion, such dismissal being without prejudice to the filing

of a new action in the event that “further instances oc-

cur of confusion in connection with registration of

students. ...” Insofar as the instant complaint alleges no

further instances“, the dismissal in the Bull-Moose case

precludes further litigation concerning the propriety of

Hayakawa’s refusal to delay the election. Whatever

claims arising from the sequence of events surrounding

the election and Hayakawa’s actions, whether for

damages or for injunctive relief, should have been raised

in the Bull-Moose case, and the dismissal in that case is

conclusive as to all such matters. Cambist Films Inc. v.

Duggan, 475 F.2d 887, 890-891 (8rd Cir. 1973); Clark v.

Redeker, 406 F.2d 883 (9th Cir. 1969). Plaintiffs have had

their day in court: two of the named plaintiffs for this

claim as well. As discussed above with respect to the

first claim, the identity between their interests and the

interests of the other named plaintiffs be barred by prin-

ciples of res judicata. Aerojet-General Corp. v. Askew,

511 F.2d 710, 719 (5th Cir. 1975).

Even disregarding the Bull-Moose case, plaintiffs

would be unable to state a claim for relief. The apparent

reason why the student government did not allow plain-

tiffs to run for office was their lack of qualification to do

so = specifically, they were not full time students or did

not have a sufficiently high grade point average. In-

asmuch as these objective prerequisites to candidacy

were not satisified, it was proper for the student govern-

ment to refuse plaintiffs access to the ballot, and it is

difficult to conceive how Hayakawa, by merely refusing

to overrule the student government, acted in violation of

their constitutional rights. There existed clear, indepen-

dent, constitutionally lawful reasons for not overruling

the student government and barring plaintiffs from runn-

ing for office. Cf. Mount Healthy City School District v.

Doyle, 45 U.S.L.W. 4079 (1977).

THE FIFTH CLAIM

The fifth claim is brought by various individual

plaintiffs, and alleges that the Black Students Union

(BSU), because it was active in the campus activities of

1969-1970, was budgeted inadequate funds to pay the

salaries of all those it had hired. Defendants have shown

that: i) the demands for money by various groups ex-

ceended the available funds; ii) that various minority

groups, including the BSU, received funds; and iii) that

the BS received much more than most groups, and in-

fact received a disproportionately large share of

available funds. Accordingly, these is no evidence that

the BSU, which received proportionately more funding

than it would be entitled to, was subject to distrimina-

tion in budgeting, regardless of what its expectations

might have been and what promises might have been

made.

For these reasons herein stated, defendants’ motion

for summary judgment on plaintiffs’ third amended

complaint is granted.

IT IS SO ORDERED.

DATED: April 20, 1977

WILLIAM W. SCHWARZER

United States District Judge

SS ee

APPENDIX 3

CERTIFIED CLASS CONSISTING OF THOSE PER-

SONS DENIED EMPLOYMENT BASED ON THE

BLACKLISTS

Petitioners alleged in their Second Claim that, on

February 17, 1969, and on February 18, 1969, following

the mass arrest in the campus, defendants compiled

blacklists of persons arrested for the purpose of denying

them employment at San Franciso State College. In par

ticular, the Third Amended Complaint alleges that

plaintiff Peter Pursely, whose name appears on the

“blacklist” was approved for teaching during the Spring

Semester, 1969, in fact taught in the psycology depart-

ment, but because of the “blacklist” respondents refus-

ed to pay him for the work performed as were other per-

sons similarly situated. As to this claim, Judge

Peckham certified a class consisting of the following in-

dividuals:

Those persons whose name appear on the list,

originally attached to a memorandum signed

by S.I. Hayakawa dated February 17, 1969, or

on amemded official lists subsequently issued

containing additional names, and who were

denied employment because their names ap-

peared on said list and who would have other-

wise obtained employment in a college pro-

gram.”

Interdepartmental Correspondence

SAN FRANCISCO STATE COLLEGE

TO: Reginald Majors, Director, Education

Opportunity Program

DATE: Feb. 17, 1969

FROM: S.I. Hayakawa Acting President

SUBJECT: Hiring Eligibility Spring Educational Op-

portunities Program

After thorough consideration, my administrative staff

and | feel that it would be inappropriate for the college

to employ for the spring semester any individuals ar-

rested for distrubances in the fall. For this reason I am

forwarding a list of those arrested. The persons named

are not eligible for hiring by any college program for the

spring semester.

SIH:lb

Attach:

cc: Vice President Garrity

Dean Daniel Feder

Interdepartmental Correspondence

SAN FRANCISCO STATE COLLEGE

TO: Donald Garrity, Vice President - Academic Affairs

Date: February 18, 1969

FROM: S.I. Hayakawa, Acting President

SUBJECT: Hiring Eligibility. Spring Semester

After thorough consideration, my administrative staff

and I feel that it would be inapproriated for the college

to employ for the Spring Semester any individuals ar-

rested for distubances in the Fall. For this reason I am

forwarding a list of those arrested. The persons named

are not eligible for hiring by any college programs in-

cluding appointment as teaching and graduate

assistants for the Spring Semester.

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signature of S.I. Hayakawa.

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under the

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—

CONSOLIDATED LIST OF PERSONS ARRESTED

Adamski. Carol J.

Alcantara, Ray

Alvarado, Frank S.

Alvarado, Julio E.

Erickson, Paul R.

Edwards, Thomas B.

Frank, Carl

Feely, Diane

Feffis, Karen Aka

Ferris, Karen

Ferentinos, George

Forman, Harold A.

Forman, Alexander

Lesser, Craig

Levin, John G.

Lewis, Nancy

Lindsley, Byron F. Jr.

Lum, Halford J.

Macklin, Richard

Mackenzie, Anne

McGee, Martha J.

McMath, Moina G.

McMurray, Margie

Meyers, Helen

Millbury, Peter

Mills, Thomas

Molloy, Susan R.

Montes, Regino S.

Morris, Peter

Morrissey, William G.

Moore, Diane

Miranda, Anthony

Matthews, Glenn T.

Matusek, Brett V.

Milne, Emile A.

Mowdy, Robert W,

Murray, George M.

McAllister, Donald '

Maass, Steven O.

Malone, Alex McRae Jr.

Mayer, William

Napoliton, Sally

Nelson, Eric

Noel, Kenneth

Nesmith, Claire A.

Noordhoff, Paulette

O’Callaghan, Michael

O’Nela, Daniel A.

O’Neal, Dennis

O’Quin, Michael

Orr, Harry

Ortiz, Rachel

Ott, John

Okpokam, Paul N.

Oliver, James J.

Ortega, Robert R.

Pallidono, Moiece L.

Palm, Anita

Patacsil, Alice

Paul, Dharm

Pedraza, Mary

Peebles, John S.

Perez, Gary F.

Perry, David

Pfeifer, Karen

Pifarre, Juan

Pine, Charles

Pine, Ruth

Poge, Ruth

Pratt, James

Pulliam, William

Stephen, Norman J.

Stroud, Welvin L.

Tabachnick, Carol

Takahashi, Elizabeth

Taylor, Anne

Taylor, Carol

Taylor, Gerald

Taylor, John R.

Teeter, Donald

Zolli. Robert

Zorthian, Barry

Zeltzer, Steve

Peter Pursley was the representative of the class as defined by Judge

Peckham. The above lists of names accompanied the February 17,

blacklists and amended lists in accordance with the class boundries. Peti-

tioners discovery did find many other members of the academic com-

munity has been denied employment because of the enforcement of the

blacklists but discovery terminated upon the granting of summary judg-

ment. Acknowledge of the authenticity of these blacklists can be found

in the answer to respondent Hayakawa’s interrogatories; respondent

Hayakawa’s deposition of November 15, 1974. In addition, the deposition

of Samuel I. Hayakawa in Barry Jablon v. S.I. Hayakawa et al No. C-71

2021 SAW Aug. 22, 1972.

APPENDIX 4

DECLARATON OF BLACKLISTS CLASS

REPRESENTATIVE PETER W. PURSLEY

I, Peter W. Pursley, declare as follows:

1. From September, 1968 through June, 1970, I

taught in the Psychology Department at San Francisco

State College on a part-time basis. My appointments to

teach were made at the beginning of each semester.

2. The hiring procedure customarily involved oral

notice of appointment from the appropriate department

administrator and subsequent routine processing of ap-

pointment papers.

3. After the commencement of the Spring, 1969

semester on February 17, 1969, I began teaching an

undergraduate course in psychology upon instruction to

do so from psychology faculty member Mr. George

Craddock. Mr Craddock was the coordinator of the pro-

gram in which I taught and he advised me that his rec-

comendation that I be rehired to teach in Spring, 1969

had been approved by the Psycology Department Chair-

man, Dr. Stephen Rauch.

4. Because of administrative delays, the Spring,

1969 appointment papers for myself and other instruc-

tors were not initiated until February 20, 1969. Subse-

quently, my appointment papers were approved by the

Dean of the School of Behavioral and Social Sciences.

5. On March 12, 1969, Dr. Rauch was informed by

Frank Dollard of the College Administration that the

administration would not approve my rehiring because

my name had appeared on a list of persons arrested at

the College.

6. Dr, Rauch promptly notified me of this develop-

ment but instructed me to continue meeting my class.

Because the administration's refusal to approve my

rehiring was for reasons unrelated to my qualifications

to teach, Dr. Rauch was confident that approval for my

rehiring could be obtained through the College’s

grievance procedure.

7. On March 13, 1969, Dr. Rauch filed a grievance

with the College’s Grievance and Disciplinary Action

Panel. The Panel sustained Dr. Rauch's contention that

the administration's refusal to approve my rehiring was

improper and specifically recommended that I be reim-

bursed for teaching services rendered.

8. I taught for the entire Spring, 1969 semester

with the approval of the Psychology Department Chair-

man and the program coordinator. I received no pay

from the school.

9. On August 12, 1969, College President S. I.

Hayakawa gave written notice to the Chairman of the

Grievance and Disciplinary Panel that he would not im-

plement the Panel’s recommendations.

10. In September, 1969, Dr. Rauch submitted for

Fall semester, 1969, my appointment papers. After in-

itial indications that the administration would again op-

pose my appointment because of the arrest list, the ad-

ministration reversed its position and approved my

rehiring for the Fall semester, 1969.

11. In a memorandum dated June 5, 1969, Dr.

Dollard acknowledged the fact of my “continuing

employment at the College in and instructional capaci-

ty. A copy of that memorandum is attached hereto as

Exhibit A“.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed this 9th day of March, 1977, at San Fran-

cisco, California.

PETER W. PURSLEY

INTERDEPARTMENTAL CORRESPONDENCE

SAN FRANCISCO STATE COLLEGE

TO: President Hayakawa

FROM: Dr. Frank Dollard

SUBJECT: Presidential directive of February 18, 1969

DATE: May 7, 1969

Pursuant to my report yesterday, I wish to question the continuing

“employment” of Mr. Pursley, Mr. Varnado, and Mr. Crutchfield as part-

time instructors in E. O. P. It seems to me improper that these students

should be employed, even without pay, since their employment in an in-

structional capacity, under the conditions, flouts the President's directive

of February 18th. it might also establish an intolerable precedent for ignor-

ing other Presidential orders. I think it necessary to take appropriate action

in regard to those responsivle for this situation.

The grievance that Dr. Rauch has brought against me will go to a full

hearing. The grievance is actually directed primarily against the

President o directive with respect to Mr. Pursley. If the hearing Committee

decides in favor of Dr. Rauch, we will face some disagreeable repercussions.

I think it essential that we confer before the hearing begins so ab to make

certain that we are clear in cur understanding of the reasons for the direc-

tive.

fdd:vk

cc -Vice President Garrity

Vice President Smith

Dean Reddell

Dr. Duerr

Mr. Jones

PROOF OF SERVICE

I, JOHN H. TUCKER JR., member, U.S. Supreme

Court do hereby declare that pursuant to the order for

service of process other than by U.S. Marshall

respondents through their counsel were served copies of

this writ as follows:

3 copies

Attorney General of the State of California

Deputy Attorney General MATTHEW P. BOYLE

6000 State Building

San Francisco, CA 94102

San Francisco State University

Dr. Paul Romberg, President

1600 Holloway Avenue

San Francisco, CA 94132

S. I. Hayakawa

225 Eldridge Avenue

Mill Valley, CA 94941

In addition, any and all notices, applications, mo-

tions, etc. by the U.S. Supreme Court Clerks or

respondents should be mailed to the following address:

RONALD J. JACKSON, Esq.

A Owens & Jackson

2 West 45th Street

New York, New York 10036

Tele: (212) 921-2771

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.