Respondents Brief — O'CONNOR v. Ortega

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Supreme Court, US, +

FILED

MAR 18 1966

JOSEPH F. SPANIOL, JR,

Nc. sf) --S>3@Q CLERK

EPs tei StPRET-1 : s4_ 3-2 7

= He UNITED STATES

Ic te cobhber Ter-inis 1 VES%

DOemmis Prt. CO *Cornricoms et art. s

Petitioners 5s

Vs.

Magma J. Or-tcbeSsa»

Respondent

Om Wreit of Certi or-ar i

co the Unitea State:

Courts of APPesl + or

Cire Ntimtk: Ciraciwu:. &

SGRIEF FOR REOSPONDE ST

MAGNO J. ORTEGA

Coumse: I af Recorct=

MAGNO J. ORTEGA

CcCim propria persoria >

1239 Thamp ron Aw etIuUS€e

Mapa, C.iustit. 21469553

Teal = €a2171652> 857 -- 3920

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1IVvsSs5S

Demmnis MM. O*Comnor, et al-s

Petitioners,

ws -

Masno J. Ortega,

Respondent

On Writ of Certi orar-i

to the United States

Courts of Appeal for

the Ninth Ci rmcui &

Coumse i of Record:

MAGNO JJ. ORTEGA

cim Pr-oPpria persona >

t23a9 Thompson Avonuce

Napa, Calif. 245595

Tel: <415) s57-3920

iii

TABLE OF CITATIONS

ALLEN v. City of Marietta (N.D. Ga. 1985)

ARMISTEAD v. City of L.A. (1957) 313. P2d

127, 152 CA2d 319: 25, 71

BALTIMORE AND OHIO RR. CO.v. Groeger, 26

U.S. 521: A-44

BEL. v. Hand, 327 U.S. 84, 66 S.Ct. 777:

-44

BIVENS v. Six Unknown Fed. Narcotics

Agents, 403 U.S. 388 (1971): 92, A-36

BRAVERMAN vv. Rosenthal, 102 CA2d 30, 226

P2d 617

=— v. SPB (1950) 96 CA 2d 423, 215 P

BUTZ V. Economu (1978) 438 U.S. 478: A-17

In re BUCHMAN's ESTATE (1954) 267 P2d 73,

123 CA2d 546, 47 ALR2d 291: 73

CAMARA v. Municipal Court (1967), 387U.S.

523: A-20

CAREY v. Piphus (1978) 435 U.S. 247: A-36

CHENKIN v. Bellevue Hosp. Ctr. N.Y.C. ETC.

(5D. New York 1979) 479 F. Supp. 1349:

CHOCALLO v. Bureau of Hearings and

Appeals, SSA (E.D. Pa. 1982) 548 F.Supp.

1349: A-18

COOLIDGE v. New Hampshire (1971) 403 U.S.

443, 91 SCt 2022, 29 LEd 564: A-42

DAVIS v. Scherer (1984) 104 S.Ct. 3012:

A-33

DIVISION OF LABOR LAW ENFORCEMENT, Dept.

of Industrial Relations v. Ryan Aero-

nautical Co., 106 CA2d Supp 833, 236 P2d

236, 30 LR2d 347: 51

FRANK v. State of Maryland, 359 US 360, 79

SCt 804: A-21

FURMAN v. Georgia, 408 US 238 (1972): 177

“at v. Schmidt, 579 F.2d 825 (CA3

1978): 91

GRAHAM v. Scissors Tail, Inc. (1981) 28

Cal.32 807, 17 Cal.Rptr. 604: 76

GREGG v. McDonald, 73 CA 748, 239 P 373

In re HAMPTON'S ESTATE (1943) 131 Pad

565, 55 CA2d 543

In re HAMPTON'S ESTATE (1943) 131 p2d

565,55 CA2d 543: 50

HARLOW v. Fitzgerald (1982) 457 U.S. 800:

A-20

HUTCHINSON CO. v. Coughlin (1919) 184 P

435, 42 CA 664

IECK v. Anderson (1881) 57 C 251, 40 Am.R.

KATZ v. U.S., 389 US 347, 88 SCt 507: 54

LAWLESS v. Calaway, 224 Cal.2d 81, 147

Pac.2d 604: 75

LYNCH v. Household Finance Corp., Conn.

1972, 92 SCt 1113, 405 US 538, 31 LEd2d

424, rehearing denied 92 SCt 1611, 409

US 911, 31 LEd2d 822, on remand 360 F

Supp 720: 72

MANCUSI v.DeForte (1968) 392U.S.364: A-12

MAPP v. Ohio (1961)367 U.S. 643: 92, A-40

MARSH v. Alabama, 326 U.S. 501 (19463: 54

MARSHALL v. Barlow's, Inc. (1978) 436 U.S.

307: A-13

MARTINEZ v. California (1980) 444 U.S.

227: <A-14

MASS. BOND. and Ins. Co. v. Industr. Acc.

Comm. (1946) 74 CA2d 911 (at 913): 74

MICHIGAN v. Tyler (1978) 436 U.S. 499:

A-14

MILSAP v. National Funding Corp., 57 CA2d

772, 135 P2d 407): 25

— v. Foster (1972) 407 U.S. 225:

A-1

MONROE v. Pape (1961) 365 U.S. 167: A+38

MT. HEALTHY CITY BOARD OF EDUCATION v.

Doyle (1977) 429 U.S. 274: A-37

NEW JERSEY v. T.L.0. (1985 105 SCt 733, 83

L.Ed.2d 720: A-30

OLIVER v. U.S. (1984) 104 S.C. 1735, 80

L.Ed.2d 214: A-32

PARRATT v. Taylor (1981) 451 U.S. 527:

A-353

PAUL v. Davis (1976) 424 U.S. 693: A-34

PEOPLE v. Superior Ct. (Tyler) (1981) 115

Cal.App.3d 557, 171 Cal.Rptr. 448: A-40

PERRY v. Sindermann (1972) 408 U.S. 593:

A-35

PICKERING v. Board of Education (1968) 391

U.S. 563: A-35

PRUNEYARD Shopping Center v. Robins, 447

U.S. 74 (1980): 58

PUBLIC UTIL COMM'N v. POLLAK, 343 U.S.

451, 467: 37

ROTH, 408 US 589, 92 SCt 2715: A-24

SANDERS: 63

SCHERMBER v. California (1966) 384 US 757,

86 SCt 1826, 16 LEd2d 908: A-41

SCREWS v. U.S., 325 U.S. 91, 65 S.Ct.

10312: 39, A-42

SEE v. City of Seattle (1967) 387 U.S.

541: A-30

SHAFFER v. Field, 339 F.Supp. 997 (C.D.

Cal. 1972), aff'd 484 F.2d 1196 (CA

1973): A-31

SKELLY v. S.P.B. (1975) 15 C2d 194: A-34,

-60, -66, -69

SMITH v. SMITH (1954) 270 P2d 613, 125

CA2d 154: 75

STATE v. PINA, 383 P2d 167, 168: 89

TERRY v. Ohio (1968) 392 U.S. 1: 82, A-

37> -41

TOSSMAN v. Newman, 37 Cal.2d 552, 233

Pac.2d 1: 75

U.S. v. BLOK, 88 US App DC 326, 188 F2d

1019, 1951: 89, A-41

U.S. v. COLLINS (2nd Cir. 1965) 349 F.2d

863: A-20

U.S. v. HAGARTY (7th Cir. 1968) 388 F2d

713: A-38, -39

U.S. v. HITCHCOCK, 467 F.2d 1107,1108 (9th

Cir. 1972): A-40

U.S. v. KAHAN, 350 F.Supp.784 (S.D.N.Y.

1972, rev'd US 239, 94 SCt 1179), 39

L.Ed.2d 297 (1974): A-5, -29

U.S. v. KOWAL, D.C.R.I. 197 F. Supp. 401,

404: 63

U.S. v. Jacobsen (1984) 104 SCt 1652,80

L.Ed.2d 85: A-31

U.S. v. PLACE (1983) 103 S Ct 2637: 82

UNITED STATES v. RABINOWITZ, 339 U.S. 56,

69-70: 37

U.S. v. SKIPWITH, 482 F2d 1272 (5th Cir.

1972): 60

U.S. v. SPEIGHTS, 557 F.2d 362, (3d Cir.

1977): 60, A-40

VALLEY BANK v. Sup Ct (1975) 15 C3d

652,656, 125 CR 553,555: 60 |

WALTER v. United States (1980) 447 U.S.

649: 39, 62

WARD v. Strickland, 420 U.S. 319, 95 S.Ct.

999: A-44

WARING v. Dunlea, D.C.N.C., 26 F.Supp.

338,340: 58 :

WHITNEY v. California (1927) 274 U.S.

357,375: 37, 58

WILLIAMS v. Collins (8th Cir. 1984) 728

F.2d 721: A-19

WINSOR v. Silica Brick Co., 31 CA 85, 159

P 877

WYMAN v. Jeames (1971) 400 U.S. 309: A-6,

-32

U.S. CONSTITUTIONAL AMENDMENTS

ist: 10, 18, 43, 53-54, 719; 92, A-35, -46

4th: 4, 43, 79-80, 82, 85, 87, 89, 91,

92, A-13, -(19-21), -(27-33, -35, -(38-

41), -46

5th: 4, 43, 51, 72, 78-80, 85, 87, 92,

A-28, -35, -46

6th: 72, 85, 87, 92, A-46

vii

7th: 72, 92, A-46

8th: 72, A-46

Oth: 43, 92, A-35, A-46

10th: 72, 78, 85, 87, 92, A-46

14th: 3 31 53, 72; 78, 85, 87,

A-~(14-16), -(34-37), -47

CALIFORNIA CONSTITUTION

1972 Amendment: 88

STATUTES

18 USCA Sec. 242: A-42

28 USCA Sec. 2283: A-16

Sec. 1331: A-37

104,

42 USC Sec. 1983: 4, 82, 105, A-16, -17,

-33, -36, -38, -44

State Civ Serv Act: 10, 19

GOVERNMENT CODE SECTIONS:

3258: 78 6524: 91, A-67

11153b: 76 11180.5: 17, 91, A-67

11183: 91 14780: 74

18714a: 18 19302a: 21

19303a: 21 19572: 30

19574.5: 5, 8, 49, 51-52, A-6, -60

19581: 75 19582b: 76

SPB Rule 361a: A-11

Rule 361b: A-11

Rule 540: 18

MISCELLANEOUS

20 Am Jur 1043: 75

CAAP Sec. 2.41: 19

2 F. Harper and F. Jones, Law

Torts,Sec. 25.1 (1956): A-36

Jefferson, WORKS: 42, 87

MR. STRATTON’S DEPOSITION, PAGE 8, DEC. 1 1983

Q. And you threw the original notes away that you had?.

A. There was only -- I had just started to make the

note, and I threw it away. ‘It was no use to me.

Q. How many pages had you written before you threw

it away?

4. Maybe two sentences.

?. And what were you writing down, just making a log

of the articles?

A. Yes, whether it was State or -- well, if I could

define whether it was State or not State.

Q. You mean whether it should be State or personal

property?

‘A. Right.

Q. And did you ask anyone else who is your superior

whether that was okay to no longer log them?

A. No, I did not.

Q. You just decided that on your own?

A. That's correct. Well, I did talk to Mr. Friday

and told him it was a difficult task and that I would not make

a log, so I «id not.

Q. And he said that was all right?

A. Yes.

Q Do you know if anybody else made a log of these

contents?

A. Nobody else did, to my knowledge.

Q. Okay. Mr. Stratton, maybe we better start first:

Where are you employed at the present time?

a. _.._Napu Stare iiosnmita..

QUESTION PRESENTED

Whether it is a violation of a

government employee's civil rights for

government officials to make a "two-

sentence" administrative inventory of

papers ina government office of which

he was the sole occupant for 17 years

while he is undergoing an administrative

investigation, and to impound all its

contents until same can be searched for

rebuttal evidence against him or his

witnesses during his prosecution.

LIST OF PARTIES

Petitioners: Dennis M. O'Connor,

Richard Friday, Dorothy Owen, Stephen

Donoviel

Respondent: Magno J. Ortega

TABLE OF CONTENTS

Opinion Below 1

Jurisdiction

Added Constitutional Provision

Statement of the Case

Summary of Argument

Arguments

ONE. THE

MOM Ww WY WW

STATE MUST ONLY BE AS

STRONG AS IT NEEDS TO BE. 42

(a,

43), (b,51), (c,53)

TWO. EMPLOYEE'S EXPECTATION OF

PRIVACY WAS RESPECTED FOR

ALMOST TWO DECADES AND DID

NOT

72},

HINDER INVESTIGATORS 59

60), (e, 64), (f, 67) (e,

J, (i, 793, (3, 80)

THREE. "ADMINISTRATIVE INVENTORY" 85

WAS PREMATURE, UNNECESSARY,

UNREASONABLE, INEFFICACIOUS,

INTRUSIVE, INDECENT, AND DIS-

RESPECTFUL OF PROTECTED RIGHTS

(k, 85), (1, 87), (m, 92), (0, 93)

CONCLUSION 102

ERRATA At

CITATIONS FOR PRIVACY AND IMMUNITY A-12

DEPOSITIONS, DECLARATIONS, ETC. A-48

TABLE OF CITATIONS (To be Supplemented)

ARMISTEAD v. City of L.A. (1957) 313 P2d

127, 152 CA2d 319

BRAVERMAN v. Rosenthal, 102 CA2d 39, 226

P2d 617

BRYANT v. SPB (1950) 96 CA 2d 423, 215 P

2d 512

In re BUCHMAN's ESTATE (1954) 267 P2d

73, 123 CA2d 546, 47 ALR2d 291

DIVISION OF LABOR LAW ENFORCEMENT, Dept.

of [Industrial Relations v. Ryan Aero-

nautical Co., 106 CA2d Supp 833, 236 P2d

236, 30 LR2d 347

FURMAN v. Georgia, 408 US 238 (1972)

GRAHAM v. Scissors Tail, Inc. (1981) 28

Cal.32 807, 17 Cal.Rptr. 604

GREGG v. McDonald, 73 CA 748, 239 P 373

In re HAMPTON'S ESTATE (1943) 131 P2d

565, 55 CA2d 543

HUTCHINSON CO. v. Coughlin (1919) 184 P

435, 42 CA 664

IECK v. Anderson (1881) 57 C 251, 40

Am.R. 115, 7 PCLJ 630

KATZ v. U.S., 389 US 347, 88 SCt 507

LAWLESS v. Calaway, 224 Cal.2d 81, 147

Pac.2d 604

LYNCH v. Household Finance Corp., Conn.

1972, 92 SCt 1113, 405 US 538, 31 LEd2d

424, rehearing denied 92 SCt 1611, 409

US 911, 31 LEd2d 822, ci. remand 360 F

Supp 720

MARSH v. Alabama, 326 U.S. 501 (1946)

MASS. BOND. andIns. Co. v. Industr.

Acc. Comm. (1946) 74 CA2d 911 (at 913)

MILSAP v. National Funding Corp., 57

CA2d 772, 135 P2d 407)

PRUNEYARD Shopping Center v. Robins, 447

U.S. 74 (1980)

PUBLIC UTIL COMM'N v. POLLAK, 343 U.S.

451, 467

SKELLY v. S.P.B. (1975) 15 C2d 194

SMITH v. SMITH (1954) 270 P2d 613, 125

CA2d 154

STATE v. PINA, 383 P2d 167, 168

TOSSMAN v. Newman, 37 Cal.2d 552, 233

Pac.2d 1

U.S. v. BLOK, 88 US App DC 326, 188 F2d

1019, 1951

U.S. v. KOWAL, D.C.R.1. 197 F. Supp.

401, 404

U.S. v. PLACE (1983) 103 S Ct 2637

UNITED STATES v. RABINOWITZ, 339 U.S.

56, 69-70

U.S. v. SKIPWITH, 482 F2d 1272 (Sth Cir.

1972)

U.S. v. SPEIGHTS, 557 F.2d 362, 3d Cir.

1977.)

VALLEY BANK v. Sup Ct (1975) 15 cC3d

652,656, 125 CR 553,555

WALTER v. United States (1980) 447 U.S.

649

WARING v. Dunlea, D.C.N.C., 26 F.Supp.

338,340

WHITNEY v. California (1927) 274 U.S.

3575375

WINSOR v. Silica Brick Co., 31 CA 85,

159 P 877

No. 85-530

IN THE SUPREME COURT

OF THE UNITED «STATES

October Term, 1985

Dennis M. O'Connor, et al.,

Petitioners,

Vs.

Magno J. Ortega,

Respondent

On Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

OPINIONS BELOW

The decision of the United States

Court of Appeals for the Ninth District

was filed and entered on June 27, 1985

and is reported at 764 F.2d 703 (1985):

The record in this case justifies

a grant of partial summary judgment

for Ortega on the issue of liability

for an unlawful search; we will

therefore remand to the district

court for an entry of judgment ip

favor of Ortega and for a hearing to

determine the amount of damages.

The judgment of the United States Dis-

trict Court for the Northern District is

not reported (nor its interpretation of

the Chenkin test accepted: Cf. Addendum:

A-65).

The decision adopted by the California

Personnel Board on March 17, 1982 is

also not reperted (nor reportable with

the Notices of Punitive Action). [1.1]

[1.1] Decision was arrived at before

the record was available to the Board

(see reply, 'r', to petitioners, p. 36,

or r. 36 and Ex. xi). A timely petition

for rehearing was submitted and denied.

The State Court hearing on Dr. Ortega's

petition for writ of mandate has been

postponed several. times because the full

administrative record had not been sent.

Only after 'r' had been filed were miss-

ing parts received minus an_ unsigned

"thank-you" note (Ex. 15a-1) to the

donor of a printer which had started a

warrantless search for forged documents

(r. 17).]

ADDITIONAL JURISDICTIONAL GROUNDS

Appended in App213

ADDITIONALLY APPLICABLE FEDERAL LAWS

As in Reply to Petition and in A-46

OTHER VIOLATED CONSTITUTIONAL AMENDMENT

14th, Section 1 (r. 52): All persons born

Or naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State

Shall make or enforce any law which

Shall abridge the privileges or immun-

ities of citizens of the United States;

nor shall any state deprive any person

of life, liberty or property, without

due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE (r. 3) [1.21-.22]

As in 'r', events/allegations (A) and

fact-finding/errors (B) will be inter-

twined below for brevity and accuracy to

disprove old and new charges (PB 24,

etc.) now "noticed" in the record!

[1.2] Cross-references will be made as

before to appendix ('a') of reply ('r')

to petition for writ of certiorari

('c'). Others will be to respondent's

brief (RB) or its addendum (Add.) or to

petitioner's brief (PB) or its appendix

(PA) to distinguish all from those to

Joint Appendix (J.A.) or the separate

exhibits (App.).

Excerpted documentation will be

indented on both sides (like this

paragraph), preceded or followed by

quotations (not one's wishful in-

ferences) from authorities directly

addressing the issues under. each

sub-heading. If documentation

and/or citations are too extensive,

they may be separated but jointly

cross-referenced/indexed.

Nature of the Controversy (Cf. App.)

"(T)he Constitution is meant to be

understood by the public."--John

Marshall

Fifth and Fourth Amendment personal

privileges and property rights violated

under color of office brought this suit

before federal court for review of civil

rights violations under the Fourteenth

Amendment and 42 U.S.C. Sec. 1983: This

case arises out of a complaint by

[1.22] Exhibits 1-21 were petitioners'

during administrative hearing, Exx. A-

OOO and i-xxiv are respondent's.

(I-VI) are days of hearing, (VII) was

ordered on the 5th day:p.111/line3 or

(v:111/3): "(C)omplete your testimony

in writing. .

respondent that petitioners (then Napa

State Hospital employees at Imola,

California) withheld earned income in

excess of $10,000 without due process

and restricted his rights of movement

and assembly by illegally placing him on

administrative leave (G.C. Sec.

19574.5). [2.1]

Dr. O'Connor -- (chief petitioner or

"King", as in "the King can do no

lasting wrong .. .", partly to save

precious space to rebut "noticed" new

charges and "findings", below) -- asked

Dr. Ortega to stay away for one week

(II:126, r. 16) so as not to inhibit

interviewees (II:85, 86), not the

[2.1] Respondent was director of an

accredited network (r. 10) for four

years of post-graduate training in

psychiatry, the only one based in a

state hospital (NAPA) in California. It

is now, like Camarillo's further south,

just another three-year residency

training prcgranm.

investigators. [2.2]

King also told peon -- (or "pawn", as

in". . . because the Court protects all

pawns") -- that he cannot enter the hos-

pital grounds without written permission

because Dr. Vaughn, also ex-con, conm-

plained of coercion to buy a computer

[2.3], but that the ex-con's leave of

absence complaint was a "closed issue".

(King denied that he pronounced J.0.A.

issue dead on II:140-141).

[2.2] An unsigned thank-you note (Ex.

15a-1) was later alleged to have made

investigators search for forged

documents (II:168-170, r. 17-18). MTheir

first ad hoc excuse was that they were

only sorting out papers (Mr. Friday's

deposition, p. 21) inside peon's second

office in Imola (Ex. P, a. 3), which

none of them -- or their superiors in

the state capitol in Sacramento -- have

entered without first knocking and

waiting to be invited in, even if the

door were open, for the last 17 years.

(Many of them, including most of listed

"real parties of interest", had also

been to pawn's house in Napa Valley

where he has another office.)

The King told the residents that Dr.

Ortega was on vacation and was "so po-

sitive that all would be well Dr. Vaughn

ask(ed) about possible retaliation when

Dr. Ortega returned. Dr. O'Connor

[2.3] The King had already thanked the

contributors (Ex. 14) and pledged other

computer accessories (Ex. 13), by

approving sub-purchase orders for then.

But his business manager, Mr. Friday,

decided (1I:112) the $75-Applewriter was

another printer. His King HAD also

thanked the donor of a $2,000-printer

for "facilitating the dissemination of

learning" (Ex. 15b). BUT, if the King

had NOT already thanked its donor, he

must have pledged a printer because all

computers had to have one. So, IF there

is a signed copy of the thank-you note

to the donor of the _ printer, its

signature must have been forged (I1I:170,

r. 17) by pawn!

IF the King merely forgot (II:62, r.

7), an unsigned file copy (Ex. 15a-1)

from pawn's office might YET suggest an

attempt to deceive: AFTER his unforged

signature was found ina signed copy

(15b), the unsigned file copy was STILL

introduced as evidence that he merely

forgot, to explain WHY forgery was

rumored! But Ex. 15a-1 turned up

missing in December, 1981, from the

administrative record sent to be filed

in State Court!

reassured him by saying that Dr. Ortega

was not that type of person" (Ex. T-2).

King did not lie. [2.4]

After King adjourned the meeting with

pawn's trainees, ex-con told them that

there was also a "sexual harassment com-

plaint". [2.5]

No complaints before or after the

administrative leave order involved

accusations which, under G.C. 19574.5,

[2.4] Dr. Vaughn was worried that his

cheating during the last annual exam

would now be used against him, where

before cheating among the hard-working

was seen as caring enough to do one's

utmost.

[2.5] "Complaint" was from Dr.

Elizabeth Reynolds, and the only one

respondent was asked about when he was

interrogated (III:6, 15) before he was

dismissed without notice. (It was ten

years old, before there was any such

cause for punitive action against super-

visors or co-workers, and Dr. Reynolds

had graduated that many years ago, was

in private practice, had co-led a

seminar in family therapy with pawn, and

is now helping him with a book on child

development, of which more later.)

require such action (Argument "{-b",

below). Nor can an “administrative

inventory" investigate any of the

complaints, old or new (PB 24, footnote

22). Only after searching pawns papers

for forged documents did amateur

investigation become an administrative

inventory, when no forgeries were found

among the file copies of the King's

"thank-you" notes (II:168-170, r. 17).

What was then inventoried was not in the

locked office, but all copies of King's

signed "thank-you" note given to the re-

sidents, who were ordered to return them

and submit their canceled checks to

prove that they contributed, or else

face charges of insubordination! (More

of this under Argument "i-c".)

Respondent is a board-certified spe-

cialist in psychiatry (1966;, the

youngest foreign medical graduate in

1959 to have received 4 special

diplomate certificate. He had been

Chief, Department of Professional

Education, Mental Hospital, State of

California, for almost two decades,

without any written complaints against

him, or any interruption of annual merit

Salary raises, the last for $3,648 on

July 1, 1981! (For the King's bureav-

cratic dereliction cf civil servant's

duty, see II:136.) [2.6]

Respondent had a three-month-old

grievance (the first he ever lodged)

against Mr. Friday (r. 8). California

State Civil Service is governed by laws

that, in the spirit of the First Amend-

ment, mandate early and open redress of

[2.6] It is curious that Dr.

O'Connor's first “performance report" on

Dr. Ortega, --—- who accepted him for

psychiatric post-graduate training and

awarded him for outstanding performance

On graduation 10 years before, -- is a

Notice of Punitive Action!

grievances before formal hearings, as

well as periodic written reports °2

decide any proposed punitive action.

Whether because of the Peter Principle

of progressive promotion up to level of

incompetence or to discourage doctors

from competing with cheaper professional

managers, all hospital board certified

diplomates in any specialty get about

the same salary, -- whether as admin-

istrator, clinician, or educator, --

which is much higher than if one ac-

cepted a desk job at headquarters in Sa-

cramento. [2.7]

Hospital doctors who are not special-

ists get paid twice as much as residents

receive as stipend. These "grants"

[2.7] Dr. O'Connor refused offers of

promotion to headquarters as long as

increase in power meant a decrease in

income. The salary offered had to be

higher than he received as a

psychiatrist before he would commute

from Napa to work in Sacramento.

equal opportunity employment otherwise

demand comparable salaries -- come from

different agencies, state or federal, or

from private income, usually their hus-

bands'. Residents who obtain their med-

ical license after the first year of

training thus forego at the very least

about $1,000 a month for three more

years of tuition, if they opt not to

join hospital staff. (Some drop out of

the program to work, and are then

counted in staff/patient ratios for

budgeting level of care, and then drop

back in to specialize in psychiatry,

investing in themselves than in another

car, etc. Before Dr. Ortega came, no

alumnus of what was then the Napa-Sonoma

_ residency training program passed their

national boards specialty certification

examination as psychiatrists on the

first sitting.)

Only formally a Chief of Professional

Education, Mental Hospital (or C.P.E.,

M.H.), respondent was fuli-time director

of post-graduate training in psychiatry

at Napa and other affiliates in Northern

California (r. 10) over a 100-mile

radius. [2.8]

Petitioner Friday, who had illegally

delayed (under G.C. 14780 in Addendum)

transmitting a computer training

contract to departmental headquarters

(r. 8), secretly seized respondent's

hospital office before 0800 hours on

[2.8] Most C.P.E.'s do not run

residency programs, and ancther, J.E.Jd.

below, lost hers in another hospital

which lost its mental patients to make

room for those who are developmentally

disabled. (She had been at Napa half-

time by respondent's invitation since

then, to help with continuing education

for rofessionals on the hospital

staff. Pawn's wide network of variedly

prestigious affiliations kept his pro-

gram accredited, even after Napa State

Hospital was transferred to the Depart-

ment of Developmental Services.

Friday, oguly 31, 1981 (Exhibit T-2,

Declaration to Federal Court by Dr.

Gandhi on March 9, 1984). [2.9]

Pawn's office locks were changed

before respondent had officially started

his forced "vacation" or illegally

ordered administrative leave (Ex. R, r.

14-15). When it was officially over,

and as he does every week-end it is

idle, he returned to the hospital to

pick up the “professional education

department's computer" (as the King

calls it, Ex. D-1).

Respondent's office key did not work,

[2.9] Counsel, in PB 24 and. by

disagreeing with J. Marshall (above),

would rather spare petitioners "the

necessity of schooling themselves in the

niceties of probable cause and permit

them to regulate their conduct according

to the dictates of reason and common

sense." (This quote had been taken out

of context, as were citations in 'C'.

"'Rssential' Omissions" from 'PB' and

++ are listed in Addendum, A-12 to A-

38.

but the computer room key did. [2.10]

It was later falsely alleged that

petitioners seized his office only after

the computer had "disappeared". [2.11]

Just before noon, a memo (Ex. $9)

extending pawn's administrative leave

indefinitely, effective 0800 hours that

Monday, was hand-delivered by an

administrative trainee-investigator (Mr.

[2.10] On re-cross-examination, pawn's

secretary testified that her husband had

already heard from the business manager,

Mr. Friday, that Dr. Ortega had been

dismissed (II:21) when she notified hos-

pital security that, as usual, Dr. Or-

tega had called to ask whether he had

office appointments that Monday morning,

Aug. 17, 1981, and to tell her he had

taken the training computer to work in

his office at home. (Ex. 10)

[2.11] Mr. Friday, as head of a_ team

of amateurs investigating respondent,

tried unsuccessfully to get a court order

to retrieve the training computer from

respondent's office at home after it

"disappeared" from another locked office

adjoining respondent's.

Arnold). [2.12]

Pawn was not even asked about the com-

puter (hospital business inventory does

not list it as government property).

[2.13]

Only later -- (Mr. Stratton's federal

court deposition, p. 60) -- did pawn

[2.12] Ex. S was back-dated the Fri-

day before, one copy also to be sent to

his office in the hospital and another

to the wrong box in the federal post-

office on the grounds which he has rent-

ed for both personal and professional

correspondence for the last 17 years.

[2.13] Dr. Ortega learned later that

all his personal effects had already

been hastily boxed the week before, and

22 or more numbered, sealed with tape

that read "Evidence, Napa Count She-

riff's Department" (Exhibit i-e), and

moved. Some of his papers were copied:

a few copies turned up in federal court

after summary judgment had been handed

down (Cf. Untimely Submissions in

Addendum), submitted in secret by state

counsel!

Pawn was not told where they were

stored, nor when they would be returned

(without the originals that had also

been copied).

find out that selected folders from his

locked files had already been removed to

a safe ("evidence locker"). [2.14]

Investigators began to spread the

rumor of sexual harassment by calls’ to

pawn's correspondents out of state, and

broadcast their suspicions of forgery

(II:168) and fraud (Ex. xxi). [2.15]

Covert threat was to deprive pawn of

reputation and license privately to

practice his profession and of his

[2.14] Second attorney of record

equates this with "the common practice

of a fellow employee's entry of an

office to obtain a file or piece of cor-

respondence, or, borrow a paper clip" (PB

16, hereafter briefly referrable as the

old "Square One" stance).

'PB', therefore, no longer claims the

"essential" lie (a.1) about removing

"three personal items" (C. 3)!

[2.15] Illegally extending the search

for incriminating evidence extra-murally

with leads drawn from medical files

(King's deposition, Argument "2-d") vio-

lated of G.C. Sec. 11180.5.

employers’ contribution to his pension

after termination as educator if offer

to accept his resignation did not work.

On August 28, 1921, Dr. O'Connor dir-

ectly dismissed respondent by phone

without written charges, promised to

meet pawn personally, and then called

back to back off from his promise,

unless a co-petitioner was present.

[2.16]

Four days later, after pawn had

already been dismissed (Ex. 1), an

undergraduate who was no longer at the

hospital as a temporary student

professional assistant improperly

[2.16] Respondent protested through

S.P.B. and appealed for referral to the

secretary of the Agency of Health and

Welfare (Exhibit N) along grievance

channels established under S§.P.B. Rule

540, as mandated by G.C. 18714(a) to

provide immediate redress (Cf. Add.) un-

der the State Constitution in the spirit

of the First Amendment.

complained of "sexual harassment": she

was never under pawn's’° supervision.

[2.17]

To proceed without resolving earlier

grievances is unconstitutional under the

State Civil Service Act. [2.18]

Dr. O'Connor announced in the HOSPITAL

BULLETIN of Sept. 30, 1981, that "Dr. d.

is a Chief of Professional Education and

with her new duties, will be expanding

her time base from one-half time to

full-time. This change will take effect

on October 1, 1981." [2.19]

[2.17] Notice of Punitive Action dated

Sept. 14 changed the effective date of

respondent's dismissal to Sept. 22,

1981, but before he could protest

against the written charges, Dr. Ortega

was told a State Personnel Board hearing

on his appeal had been scheduled for

October 29, 1981, ahead of others al-

ready appealed (r. 21, CAAP Sec. 2.41 in

Add.

ae, By disregarding its own rules

(r. 21), S-P.B is therefore denying a

jointly protected constitutional

privilege to a California citizen.

It was openly claimed that petitioners

have succeeded in depriving pawn of his

retirement pension (Exx. [-2, -+3).

[2.20]

[2.19] At one point, reiterated in PB

4, last line, to explain the expro-

priation of all his personal belongings,

it was alleged that Dr. Ortega's office

had to be vacated for his replacement

even before he was dismissed in August

without written charges.

J-E.J. did not want to take pawn's

place even after he was officially

dismissed, effective September 22, 1981.

Dr. Ortega's office was never occupied

while J.E.J. was in the adjoining office

that he had given her.

[2.20] Pawn was also told will be

charged with Medi-Cal fraud (Ex. xxi, r.

53) and may be arrested before he can be

tried for whatever else the "adminis-

trative investigation" may turn up

(Exhibit L, r. 22).

Administrative Proceedings (Cf. App.)

To hold formal hearings before

discovery can be completed was denial of

due process, even if the hearing is

quasi-judicial, but again essential in

order to dismiss without documentation

(Cf. App.)! [2.21]

Had the ground rules of G.C. Sec.

19302(a), 19303(a) and that of others

cited (Cf. Appi151-153) been honored,

much could have been saved.

Respondent has not yet recovered his

social and professional reputation, and

he has been "bad-mouthed" as a "woman

izer" before, during, and after the

[2.21] On the eve of pawn's adminis-

trative hearing, a graduate student com-

plained of being importuned three years

before (1:39) when she briefly trained

as an intern in the hospital social

service department and opted to attend

pawn's case conferences for the

duration. She was "found" to be a

"Social worker" in Sacramento by the

time she testified. Pawn did not even

recognize her!

hearings by the publicity no other hear-

ing had received before or since. Even

in the tennis courts, he has been shun-

ned by wives of mixed doubles teams.

His wife suffered from cardiac irre-

gularities (Ex. LL) after the charges

against him were given unprecedented

publicity. And he has not been able to

afford to get away, except within driv-

ing distance of home, ever since.

INTRODUCTION AND SUMMARY OF ARGUMENT

Secrecy about California's intentions

to search, seize, store, and steal

contents of locked office was preserved

throughout under (1) the umbrella phrase

"investigation of management practices".

During the administrative hearing,

concern was expressed over (2) the "dis-

appearance" of the "Professional Educa-

tion computer" (Ex. D-1) from an ad-

joining office. Only in the federal

court did concern over (3) the resi-

dents' records (which were all filed

outside respondent's locked office)

become another excuse for breaking-in

and burglary. To have raised it before

would have reduced the credibility of

complaint of coercion voiced by ex-con,

whose record contained a report of

cheating during the residents' last

annual exam.

At no time was (2) the computer or (3)

any files asked to be returned as

hospital property. Neither the con-

tributors nor the records nor (4) the

residents themselves had ever been the

hospital's responsibility, since (4) are

not salaried as staff, and their

training stipends and (3) equipment

(e.g., of video studio) and adminis-

trative Support come from different

sources, personal or federal as well as

several state agencies. In fact, Napa's

patient popv-ation was less and less a

learning resource for clinical training

in general psychiatry. Napa is more

generally useful in facilitating paper

processing and building maintenance for

the professional education department,

which keeps expanding its network of

affiliations while the hospital itself

shrinks. But any State remains liable

for damages it could have avoided

inflicting upon any civilian, employee

or unemployed.

An employer is required in all

cases to indemnify his employee for

losess caused by employer's want of

ordinary care. Deering's Lab C Sec

2800.

If due process was violated by the

search and seizure which led to the late

Dr. Laskay's "preliminary internal

investigative report", submitted after

the adverse public reaction to the sum-

mary judgment -- Cf. Addendum, A-65 --

then even petitioners' decision to dis-

miss (the discipline imposed upon

respondent or the basis of the

investigation) is void.

1 Am Jur Proof of Facts 2d 549:

Evider:e of facts (BRAVERMAN v.

Rosenthal, 102 CA2d 30, 226 P2d 617)

or statements (MILSAP v. National

Funding Corp., 57 CA2d 772, 135 P2d

407) inconsistent with the employ-

er's contentions may be introduced

to demonstrate the emplover's

asserted reason for a discharge was

not the true reason.

There were twe SERIAL excuses for

privacy violations advanced in tanden:

1) 1st TWO weeks: suspicion (III:170, Ex.

15a-1) that Dr. O'Connor's signature to

the thank-you note to the donor of a

printer to hook-up with a computer

bought without state money was FORGED,

which warrants a warrant, and

2) AFTER August 17: recommendation in the

"Misdemeanor/Incident Report of "Missing

Property" (training computer) that "this

matter be turned weer to the committee

who are reviewing Dr. Ortega's depart-

ment at this time, to determine if any

CRIMINAL activity has occurred". (Page

2 of Exhibit 10).

Either, AND certainly both, will se-

cure a search warrant. But the invest-

igators knew they will have to specify

what to look for, and that will not do,

for they have not found anything so far.

By Sept. 14, it was finally decided to

work under the cover of qualified

immunity for General Rubin (Deputy State

Attorney) who kept COERCION out of his

Notice of Prnitive Action but took

custody of expropriated private

property.

Petitioners claimed (C. 3) that after

their administrative inventory "to

determine what records and other State

property was there" ("in respondent's

locked office"), "three personal items",

-- a semi-nude professional photograph

of a model (Joyce Onne), her self-

composed valentine card and a "standard

book of poetry", -— "were removed as

relevant to the pending personnel

investigation against respondent." Were

they seize. because they were work-

related? Or tantalizing? [I:a]

It is plain to see why petitioners

want to go back to Square One (borrowing

paper clips, PB 16) and plead that they

are not being sued for the proper

violations, after having been refused

permission to plead their "good faith"

[tra] 'PB' is quite suddenly thunder-

ously silent about what “were removed as

relevant". Does their silence now mean

a "No contest" plea? Or has their “amor

propre" prevented candid acknowledgement

of mistaken judgment that demeans and

negates the cost-conscious bottom-line

values their petition symbolizes?

to a jury. But, just in case that is

also too late to raise, another

justification for their position has

been introduced, this time about having

sued respondent improperly to begin with

(details in Argument "1-a", Add.). [I:b]

After the §.P.B. hearing had started,

state counsel threatened to use (Ex.

JJ-2, r. 26, a. 6) and did use (III:90 -

92) Dr. Onne's "personal items" against

Dr. Sutton's declaration (Ex. P) of long

accepted practices that made respondent

personally effective and hard to replace

(a. 2).

II:3/10: After receiving Exhibit P:

Mr. Rubin: At the hearing, I

volunteered to present to Dr. Ortega

some additional materials which have

become relevant, only as a result of

[rr] 'PB' is a selective reiteration

of 'C' and both show ABSENCE OF (1)

regrets (apologies), (2) remorse

(guilt), (3) reflection, and (4) recon-

sideration.

the first hearing, when he handed me

some statement of a former staff

member of the hospital. [I:c]

The State seeks not oniy to invade

personal privacy in government property

but to violate professional confidences.

(Cf. Dr. O'Connor's federal deposition,

pp. 60, 73.) Confidentiality is an even

older protected privilege than the

tradition that what does not belong to

the state belongs to its citizens. (Cf.

Argument "1-c".)

Petitioners deny that a professional

has privacy and property rights to his

professional and personal files. In

fact, permanent employees have property

rights to their jobs besides, from which

they can only be dismissed for cause. A

[I:c] The "female medical resident"

(Dr. Onne, C. 3) has thus metamorphosed

into a "former staff member" (Dr.

Sutton, a. 6) and second attorney of

record's thunderous silence, after

reviewing the record, is now audible.

"Sorcerer's chase" (Cf. Conclusion) for

4 cause to dismiss, even after

elimination of inapplicable sub-

paragraphs of Sec. 19572 (below), can be

interminable. General Rubin had added

two more (Cf. App. on Nature of Past

Controversy) after the hearing was over,

and second attorney of record still

another in his 22nd footnote (Gf.

Argument "{-a", Add.; PB 24.) The chase

to prove secret sexual and coercive

powers had first taken three amateur in-

vestigators -- one of whom, Dr. Laskay,

is not a permanent employee, but an

applicant for respondent's job after

dismissal. -- six weeks, and now three

shifts of lawyers have extended it to

five years. (Cf. VII:383, 387)

'C' also claims that "(o)ne of the

state employees made several attempts to

sort through the items in the office

trying to separate and identify State

property from other items. Finding the

task impossible, he eventually boxed the

contents of the office and placed them

in a locked room for the doctor to pick

up". They had been "sealed" before

respondent was dismissed with tapes

which read in red letters, "Evidence,

Napa County Sheriff's Dept.", and marked

"Personal Property of Dr. Ortega, Oct.

7, 1981" (Exhibit i-e). Yet, General

Rubin denied respondent's request to

surrender them (Ex. W, r. 23) on Oct.

20, 1981, 6 weeks after his dismissal by

phone.

It is easier to see now why returning

to Square One is preferable to _ the

prideful and prudent than pleading "No

contest": Under the Fourteenth Amend-

ment, the state does not need to act; it

can, by inaction, deny equal rights. By

its own action, it has also violated

State and federal laws according to the

the authorities cited under points (a)

to (o) in Arguments One to Three.

Both action and inaction are indis-

putably attributable to the state in the

person of its accredited (if not right-

ful representatives, e.g., Dr. Laskay,

administrative trainee arnold), as in

the denial of the right to confront

witnesses by the refusal of the quasi-

judicial hearing officer to issue

Subpoenas. The fact that the State must

accredit the perpetrators for civilian

(and human) rights to be violated means

that the Constitution limits it in the

interest of the basic freedoms that our

Bill of Rights seeks to preserve. It is

because the State enjoys a monopoly of

power (which even the Court does not

contest) that it is restrained from

coercion (by the Court with which it is

not in contest). [I:4d]

The State was also worried about the

confidential trust BETWEEN investigator

and interviewee, and hearing officer

agreed that was privileged under a non-

existent law (I1:151), but not about

the privileged communication between a

[I:d] Only the Court, which cannot

raise armies or levy taxes, enjoys

perfect immunity, precisely because it

cannot conscript or tax. Counsel is

worried about the dollar cost (hereafter

BLC or "“bottom-line-consciousness) if

this Court does not protect the King

against his pawns.

B.L.C. was never a consideration for

granting borrowed sovereign immunity,

divine or secular, to Churches

(sanctuaries), embassies (visitors) or

executives (civilians).

Prosecutorial (Cf. Argument "2-d",

footnote [d:4]) and quasi-judicial

immunity are both less defensible in

practice or fiscally (a. 7-10).

Cf. Add.: criss-crossing evolution of

official immunity and personal privacy.

doctor AND his private patients whose

files were desecrated. For loyalty to

informers, the hearing officer defied a

court discovery order (Ex. H), but turn-

ed his back on the judiciary.

If (1a) the hearing officer was biased

and (1b) respondent should not have been

dismissed, the State must have acted out

of (2a) racial bigotry (jingoistic) AND

(2b) sexual prejudices (miscegenophobic,

Cf. App48) OR in cahoots with other

parties (3) to steal Dr. Ortega's train-

ing funds (II:80), or to bag BOTH birds

(dismissal and positions, r. 17) with

one idly thrown stone: an ex-con's spe-

culation about COERCION of contributions

to a training computer the residents

themselves wanted to use before their

graduation (V:82).

If the proper way to view any

violation of civil rights is as a whole,

-- as the decision against “separate but

equal" education did, -- to do so is to

weigh the CUMULATIVE EVIDENCE. The

proper decision must address the ques-

tion as to whether or not "adminis-—-

trative inventory" of, ever includes

"impounding" all, non-contraband per-

sonal effects, and was so intended from

the start and thoroughly implemented as

such, in the light of all the facts.

The issue is not only whether every

piece of evidence proves the violation

of a protected or cherished right, which

each easily does (a-o), but whether it

is likely that all the relevant acts

together (i to x, below) would have

occurred without the initial excuse and

abuse of (i) an invented and inventive

"administrative inventory":

If an inescapable conclusion is’ that

'inventory' means 'impounding', not only

of "work-related" material but all

personal memorabilia, then petitioners

clearly have no right even to ask the

Court for permission to proceed with a

clearly illegal procedure. [I:e]

If (1) "the King can do no wrong

[I:e] The shallowness of the pretext

to exclude peon indefinitely and simul-

taneously to impound what is non-con-

traband and purely personal is highly

Suspicious of latent fears or concealed

malice or both, since they usually co-

exist because they defend against and

need each other or else malevolence is

undeniable. (Can what is private to one

be very disturbing to the deprived, and

privacy must be guarded to preserve

harmony as well as to reserve to oneself

what is nobody else's business, shameful

or not?)

Unchallenged to date is the principle

that it is the invasion of privacy in a

peon's rightful place, not the disturb-

ance of property in a government castle,

which the law seeks to prevent.

This precedent in law appears in Dr.

Ortega's petition for writ of mandate

but was never addressed, like all

specific citations of case law and the

California Constitution that respondent

sent in advance of 'PB'. (Is their

silence silent concession?)

because the Court can right every wrong"

(respondent's paraphrase, Argument One),

(2) “American independence was’ then

and there born" with the victory of the

Fourth Amendment (Justice Frankfurter,

UNITED STATES v. RABINOWITZ, 339 U.S.

56, 69-70, quoting John Adams, Argument

Two), and

(3) “"(t)he right to be let alone is

indeed the beginning of all freedom"

(Justice Douglas, PUBLIC UTIL COMM'N v.

POLLAK, 343 U.S. 451, 467, Argument

Three),

then "the final end of t..e State to make

men free to develop their faculties"

(Justice Brandeis, WHITNEY v.

CALIFORNIA, 274 U.S. 357, 375, cannot be

served by “administrative inventories".

The King is now before this Court to

obtain immunity as sovereign, and the

pawn only because only the Court has

absolute immunity or it cannot right all

wrongs.

It cannot be seriously argued that Ca-

lifornia cannot train its psychiatrists

without stealing Dr. Ortega's papers.

(A copyrighted manuscript on _ senso-

socio-sexual development is still

missing.) The state does not claim

educational enthusiasm to develop its

citizens' faculties to the full as its

end, only missionary zeal for non-erotic

order and miserliness (B.L.C.)!

Did Dr. Ortega present a clear, pre-

sent, and substantial danger to the

interests of the State? Is he a danger-

ous man? Was he a public enemy or even

privately evil? What is the wise and

proper use of judicious decisions in

reconciling power and freedom? [Is the

State getting weaker and the individual

more lLicentious?

In this case the Court might herve to

choose between the people's mandate and

legislative will against executive

willfulness and "malevolence" (Cf.

SCREWS in Add.)! California secured the

right of privacy of every man, woman and

child, retarded or not, by referendun,

in the very first article of its Cons-

titution. Can the subsequent legis-

lative expression of it be declared un-

constitutional to give state officials

immunity in impounding personal proper-

ty? [I:f]

In summary, respondent questions

the constitutionality of an "“adminis-

trative inventory" by biased fellow

[I:f] People are also protected not

only against search and seizure of

property which they are legally entitled

to possess. Things may even be

wrongfully ina person's possession --

stolen goods, for instance -- and the

protection applies no less. (See also

Justice Stevens in WALTER v. U.S.,

Argument "2-d", below.)

employees

ii) triggered by trivial complaints but

iii) conducted in employee's absence

iv) during an administrative leave impro-

perly intended to separate him from his

associates and

v) illegally ordered to facilitate search,

seizure and stealing of souvenirs

vi) to blackmail pawn's possible witnesses

in a quasi-judicial hearing

vii) hastily scheduled and unfairly

conducted to dismiss a peon whom none of

his employers has ever reprimanded or

even criticized in 17 years by

viii) intimidating his legitimate union

representative and thereafter

ix) withholding his already earned income

to prevent hiring private lawyers

x) after failing to deprive him of his

employers' contributions for over 17

years to his retirement pension by

convicting him of fraud (r. 40).

Pawn's answer is that there has’ been

no administrative inventory (high-sound-

ing excuse ended with "Maybe two sen-

tences" in all, A-57), there has been no

orderly investigation but a "sorcerer's

chase" even in later briefs charging new

causes for dismissal, no hearing but an

inquisition jumping to conclusions, no

trial but a lynching party passing sun-

mary judgment, followed by an exclusive

ex-parte (Star-—Chamber) post-mortem

prompted by a dead man's discovered dia-

ry. [I:g]

[I:g] Whether or not God Hirself is

dead, the King and his queens (pawns who

have pushed to the eighth rank from

Square One and cannot take being scorn-

ed) must be both tender-hearted and

tough-minded, and ruthless and hard-nos-

ed only with foreign enemies in our bos-

om or in Granada, etc. If they are not,

the Court must ask the King change his

ways and/or his courtiers for the sake

of his subjects.

ARGUMENTS (Facts, Points, Authorities)

Cf. Reply to Petition (r. 41 - 59) for

additional facts, points, authorities.

Each argument (1-3) introduces its

points (a-o), all ending by summing up.

ONE

THE STATE MUST ONLY BE AS

STRONG AS IT NEEDS TO BE.

This is the reason behind our’ system

of checks and balances that is unique in

the American Constitution:

"The King can do no wrong because

the Court can right every wrong."

RELATED BUT SEPARATE PART-ISSUES/EVENTS

"The whole of government consists in

the art of being honest." Thomas

Jefrerson, WORKS, VI, 86.

IN SHORT, secrecy does not allow talking

things out. It encourages fighting

things out, -- sooner or later, -- or

worse, suffering in silence, seething

with violence, turning against each

other.

(a)

Petitioners' "Administrative Inven-

tory" Was Conducted In Secret, Un-

necessarily, In The Civilian Enm-

ployee's Absence (r. 15, 18-19).

Const. Amend. 1,4,5,9.

One of the worst consequences of se-

crecy is the license it confers upon de-

ceit. Will administrative inventories

help the state discharge their rightful

responsibility to maintain law and order

or, as it has in fact done, encourage

lawlessness and disorderly conduct?

Government workers should be shielded

from reactionary governments. If peti-

tioners had somehow misled enough peo-

ple (though voters cannot be fooled all

of the time) to reach the floor of the

Constitutional Convention, they would

likely have argued for special dispen-

sation for state overseers and we would

now be living under a Bill of State

Rights that says:

"Office entries and administrative

inventories are reasonable if con-

ducted for a work-related concern by

government agents." (PB 24)

Petitioners have not claimed that to

finish an administrative inventory it

must be started in secrecy. But if they

had framed the Constitution they would

now be likely to argue to include that

"reasonable" in the Bill of State Rights

can well include proceeding in secrecy.

Because their representatives were not

among the Founding Fathers, their

followers now want to disturb the bal-

ance of powers and ask the judiciary for

legislation ex-post facto to justify

executive search and illegal seizure of

souvenirs in an ADMINISTRATIVE paper

INVESTIGATION of fantasied "Sexual ha-

rassment of other employees and ques-

tionable possession of a computer on

NAPA State Hospital grounds". PB 24.

"ax During an extended period (from

July, 1970 through July, 1972), you

sexually harassed a female Medical

Resident (one of your. supervisees)

by stroking her hair as she walked

down the hall or was in her office.

Only a team of amateurs will conduct a

paper see vh to clarify that or this:

Dr. Richard Vaughn was asked to specu-

late about coercion of fellow residents

to obtain a training computer after he

submitted his complaint about a surprise

6 months'separation (Ex. 4) instead of

just a month's further delay of his

medical rotation that he requested of

Dr. Ortega. The idle suspicion of

coercion was repeated verbatim as

credible by the Personnel Officer (co-

petitioner Owen) in her report to Dr.

O'Connor. (Ex. 7.)

[Dr. Ortega had already told his ex-

con that the 6-month clerical error was

typographical (r. 12, 1:52), and to

return the check that came with the

notice. To assess ex-con's chronic

Suspiciousness, see his version of his

conviction for fraud, 1:47.]

II:103/19-24 (a. 20): None was coerced.

Dr. Laskay likewise denied coercion:

"I do not recall any of the

residents Saying they had been

coerced. That was not the charge."

(III:9)

To protect Dr. Vaughn's credibility as

a witness against impeachment by

existing documents in the residents’

records, a whole series of improprieties

followed on the part of state employees:

Personal papers were impounded

illegally with ease (during petitioners’

initially protective and nisguided

search for incriminating evidence

against ex-con) by some of the

investigators interested in finding out

about pawn's very private affairs.

2) Toa

(mixed

part

19),

hearin

from §

offi

pape

paid

llow finding of “shock" at L.O.A.

up with A.L. in PB 24!) on the

of ex-con in "roposed Decision (a.

the record of of the first day of

g did not include p. 71 (recovered

-P.B. archives):

Dr. Ortega: When you left my

ce, you asked me to get the

rwork so that you don't get

Dr. Vaughn; I said if you

thought you could deny me my salary,

that

you'd best get started because

I intended to fight you about it.

Co-c

could

ground

i352e5

4) By t

Onspirators among petitioners

only corroborate (r. 13) the

less suspicion they shared. Cf.

8,98 (r.14), IV:40 in Appendix. |

he time Dr. Ortega deferred cross-

examination of the first day's

witnesses, reserving the right to con-

front

them after his petition for full

discovery was granted by court on Nov.

2, 1981 (r. 25, Ex. H), Mr. Rubin felt

it safe to recall his only witness to

"coercion" to buy a computer, since ex-

con would not have to answer questions

that might refer to a recent report that

he cheated during the annual examination

of residents.

Incidentally, it was this report that

prompted seizure of Dr. Ortega's office,

in petitioners' zeal to protect the

complainant whose idle speculations were

the only basis for the illegal ad-

ministrative leave order. (By casually

asking the secretaries about training

records, they finally located the report

where it belongs, locked up with all

training performance reports in their

own filing cabinets in their office.)

4) Folios IV and VI were transcribed

before Folio Y\. The early pages of

Folio V contained damaging validation of

Original federal complaint of violation

of G.C. Sec. 19574.5 in forcing Dr.

Ortega to “take a vacation" as unpaid

administrative leave, thus depriving him

of income without due process. Cf.

App., V:18/10 (r. 51), and II:85, 86.

:88 (r. 16): Due process was denied.

Confiscations without judicial

hearing and judgment after due

notice are void for want of due

rocess of law. IECK ~*~. Anderson

(1881 ) 57 C 251, 40 Am.R. 115, 7

PCLJ 630.

T-2: Chief Resident re Seizure, etc:

Fr, 31 July 81: "When we got to the

nospital, we found Mr. Friday

talking to the secretaries and we

were soon told that Dr. Ortega's

office was locked, THE LOCKS WERE

CHANGED, and that Dr. Ortega had

been asked to take a vacation. We

were told that there would be a

special meeting with Dr. O'Connor on

Monday .. . (Emphasis added.)

Mo, 3 Aug: ". . . He was sorry for

the investigation but it was the

FIRST TIME that two people had

complained, in writing, and he was

obliged to look into it. . . He was

very positive that NOTHING WOULD

CHANGE and he spoke very fondly and

highly of Dr.Ortega. .. but got Dr.

Vaughn .. . sufficiently worried to

make him ask about possible reta-

liation when Dr. Ortega returned.

Dr. O'Connor reassured him by saying

that Dr. Ortega was not that type of

a person." (The King barely

remembers this meeting when cross-

examined at the hearing.)

The existing climate did not mandate

Suspension of assembly or salary.

The purpose of the constitutional

guaranty that property is not to be

taken without due process of law is

to exclude arbitrary power from

every branch of government, it being

a restraint upon the legislative,

executive and judicial departments.

HUTCHINSON CO. v. Coughlin (1919)

184 P 435, 42 CA 664.

In any government of men, but not in law:

1) The covert object of illegal in-

vestigation is to discover proof of

wrong-doing, rather than attempt to

exonerate.

2) The covert object of tardily charg-

ing with wrong-doing is to convict,

not to acquit.

In re HAMPTON'S ESTATE (1943) 131 P2d

565, 55 CA2d 543, notice to party

wnen rights are to be affected by a

judicial proceeding is an essential

element of "due process of law".

IN SUM, "i-a" argues that secrecy was in-

tended in order to seize and search,

even if the salary of the employee on

forced leave is stolen in order to steal

from his papers what can be used against

him. (At least, the Democrats did not

pay their Watergate burglars.)

(bd)

Divorcing A Peon From His Personal

And Professional Associations Was

Illegally Accomplished By Placing

Him On Administrative Leave Without

Pay For A Week, Extended To Two

Weeks "Vacation", And Then Indefi-

nitely, Even If The Investigation

Was Not Done [In Compliance With

California Government Code Section

19574.5 (r. 15,19). Const. Amend.

Paid vacation is a supplement to

the employment agreement which in

effect constitutes an offer of

reward or additional wages for

constant and continuing service.

DIVISION OF LABOR LAW ENFORCEMENT,

Dept. of Industrial Relations v.

Ryan Aeronautical Co., 106 CA2d Supp

633, 236 P2d 236, 30 LR2d 347.

Pawn was not accused of (v) misap-

propriation of public funds or property,

(i) drug addiction, (u) mistreatment of

persons in a state institution, (k)

immorality, or (a) acts which would con-

stitute a felony or a misdemeanor

involving moral turpitude. These are

the only accusations for which "the

appointing power may order the employee

on leive of absence for not to exceed 15

days. . . If punitive action is not

taken on or before the date such a leave

is terminated, the leave shall be with

pay." Govt. Code Sec. 19574.5.

A week's administrative leave (1I1:126,

r. 16) was extended to two weeks’

"vacation" in order to avoid spreading

ugly rumors before confrontation with

rival academics (II:80-82, r.17) who

chronically coveted training funds from

every source (V:35, r. 11).

Respondent had been able to keep those

the King called "cannibals" (II:80) away

from his budget for 17 years and managed

to expand his program against all odds

(III:122, a. 29). While still under

"house arrest", he tried to get outside

help to investigate old conflict of

interest: Ex. SS (r. 11): -Ltr to Atty.

Gen. (App33)

SUM, "4-b" argues that the

administrative leave order does not

conform to the law that lists what

accusations may invoke its provisions.

(c)

To Snoop ("2-d", below), (i) The

Grounds Where A Peon's Second Office

As Well As The Federal Post-Office

Is [Located Was Placed "Off Limits"

To Him But, Even Worse, (ii) His

Associates, In Turn, Were Also

Barred From His Office At Home (r.

15, 19, Exx. R, S; AAA, T-2,3, 22

below). Const. Amend 1, 14.

Ex. AAA: Memo fr Actg Dir, Psy Res Trng:

"August 17, 1981:

". . . The residents are not to have

any official business with Doctor

Ortega during his period of leave

according to our administration. ..

"s/T.L.B."

The First Amendment imposes limita-

tions upon governmental abridgement of

freedom to associate and privacy in

one's association. USCA Const Amend 1.

(KATZ v. U.S., 389 US 347,-88 SCt 507.)

In MARSH v. Alabama, 326 U.S. 501

(1946), the Court held that merely

because a corporation owned title to

a town, it could not impair". . ,

channels of communication..."

California has withdrawn the right to

exclude from the "bundle of property

rights".

First Amendment "procedural rules" --

the presumptive invalidity of prior

restraints, the doctrines against

overbreadth and vagueness, and the re-

quirements of scrupulous procedural

safeguards -- are protective devices to

assure adequate "breathing space" for

free Speech and to avoid the more

obvious forms of infringement:

Ex. T-3(f-i), 9/2/81: A Senior Resident:

". . « The general feeling was

cde ——— es

a ie

that it was a biased investigation

but Dr. O'Connor responded that it

was not. The credibility of an

allegation of. sexual harassment

which occurred years ago was

questioned.

"Complimentary statements about

Dr. Ortega as a unique and competent

chief were brought up by the

residents. There were concerns

about Dr. O'Connor's choice of Dr.

Brannick as acting chief, and he

responded that he didn't know Dr.

Jeffress so well.

"I asked Dr. O'Connor whether the

memorandum still holds about

residents not being allowed to

contact Dr. Ortega officially or

unofficially was still binding. He

said that Dr. Ortega was no longer

officially connected with NSH and

that the residents should feel free

to contact him. He said he would

call Dr. Ortega himself one day.

"I also asked Dr. O'Connor if the

residents were still expected to

produce the(ir) checks and ‘'thank-

you' letters (to them) OR ELSE

expect administrative action for

insubordination. Mrs. Owens stated

that we did not have to, unless

there was a court order to do so."

(Emphasis added.)

Tt was particularly improper’ that

after testifying on 12/30/81 about their

need for the computer (V:82, a. 35), the

part-owners were warned (Ex. ZZ, below)

not to use it for their research

projects outside the hospital: It was

in their department's second office.

Kept there, they knew it cannot be

confiscated as "evidence", -- even if

they refused to surrender the cancelled

checks (proving they contributed) that

the hospital demanded (Ex. T-3, avove),

-- after they found out that Dr. Ortega

defrayed more than half its cost!

Is the following embezzlement under

color of office even if the embezzler

did not benefit:

Ex. ZZ: Memo fr new Psy. Res. Trg. Dir.:

"1/7/82 [APTER V:82, 12/30/81 (a. 35)]:

"The computer in Dr. Ortega’s

possession may not be used by any of

the residents during the working day

or on any official research pro-

jects.

a/J.E.J."

Thus, by administrative fiat, even

AFTER petitioners' half-hearted "admin-

istrative inventory" proved the computer

was never processed as government

property, -- like its desks but not

their contents, and therefore belonged

to the people if it did not belong to

the state -- its owners are forbidden to

use their own joint property for what

they intended the computer to do when

they decided together to buy it for

their exclusive use.

Contributors and non-contributors were

members of the Napa Alumni-Resident

Association for continuing professional

education and research and were

discriminated against as such. How can

owner-member-contributors to the train-

ing computer be legally denied the use

of what they own and forbidden to

associate and peaceably assemble?

In PRUNEYARD Shopping Center v.

Robins, 447 U.S. 74 (1980), the

Court declared that: "It is, of

course, well established that a

State in the exercise of its police

power may adopt reasonable

restrictions on private property so

long as the restrictions do not

amount to a taking without just

compensation or contravene other

federal constitutional provisions."

A major purpose of the First Amend-

ment is to advance knowledge and reveal

truth -- this is its purifying quality:

In WHITNEY v. California (1927) 274

U.S. 357,375, Justice Brandeis con—

curred that: "(T)he final end of

the State (is) to make men free to

develop their faculties."

Nothing can with greater propriety

be called a man's "property" than

the fruit of his brain. WARING v.

Dunlea, D.C.N.C., 26 F.Supp.

338,340.

IN SUM, "1-c" argues that the right of

professionals peacably to assemble for

the advancement of science and to

petition for redress of grievances was

seriously compromised by the idle

Speculation of an ex-con about what

Should buy training equipment, savings

Or taxes.

TWO

PEON'S EXPECTATION OF PERSONAL AND

PROFESSIONAL PRIVACY IN HIS LOCKED

WORK-AREAS AT HOME OR THE HOSPITAL

WAS REASONABLE, HAD BEEN RESPECTED

FOR ALMOST TWO DECADES AND COULD NOT

HINDER WHAT PETITIONERS "OFFICIALLY"

WANTED (TO SECURE TRAINING RECORDS)

(Respondent's Reply to Petition, p. 41)

IN SHORT, the "three personal items"

Claimed to have been work-related had to

be stolen because they are not

discoverable as relevant and are, in

fact, not presented to this Court as

evidence that the "administrative

inventory" was what it was claimed to

be. (See III:6 about fictitious sexual

harassment complaint to justify

"removal". C. 3.)

"Necessity alone, whether produced

by danger or OTHERWISE, does not in

itself make all non-probable search-

es reasonable -- the equation must

also take into account the like-

lihood that the search procedure

will be effective and the degree and

nature of intrusion into the privacy

of the person and effects of the ci-

tizen which the search entails.

U.S. v. SKIPWITH, 482 Fod 1272 (5th

Cir. 1972). (Emphasis added. see

also U.S. v. SPEIGHTS, 557 F.2d 362,

3d Cir. 1977.)

(ad)

Respondent's Private (1) Medical

Files And (2) Personal Correspond-

ence Were Inspected And His Employ-

ers Violated Confidentiality By

Second Use Of Information Thereby

GAined (r. 22-23). Const. Amend 4.

Dr. O'Connor in his April 27, 1983 de-

position, A-51, admitted reviewing res-

pondent's private patient files.

We may safely assume that the right of

privacy extends to one's confidential

financial affairs (esp. medical

billings) as well as to the details of

one's personal life (in decade-old me-

morabilia). VALLEY BANK v. Sup Ct

(1975) 15 C3d 652,656, 125 CR 553,555.

Ex. xxi (r. 52): Medical files misused:

TO WHOM IT MAY CONCERN:

I declare under penalty of perjury

4 ° . ©

In the fall of 1981, while Dr.

. Ortega was under investigation and

before the hearing started, the

Director of Crestwood Manor in

Modesto, California asked me if I

knew a Dr. Ortega who was being

investigated for Medi-Cal fraud. He

was on the phone at the time to

someone who had just informed him of

that. ..

. Executed in Oakland, California on

July 9, 1982.

s/East Bay M.D.

A federal law dating back to 1825

. makes it acrime to take mail before

delivery to the addressee with design to

obstruct correspondence or "to pry into

the business or secrets of another," or

open, secrete, embezzle or destroy.

(Dr. Ortega's union membership card was

Out of its envelop when brought to his

door. Cf. Argument "2-h", also.)

It is obvious that protection is

afforded against snooping, even though

the mail is not opened. A “taking" need

be no more than picking up a letter to

examine it. Eavesdropping itself [even

before the invention of the telephone

for paperless communication before

computerized, MODEM-mediated (r. 6),

transmissions] has been recognized as a

crime by common law for centuries.

II:100 discloses who gave consent in

pawn's absence, without asking for power

of attorney to dispose of anything that

strikes the various investigators' gamut

of fancies.

In WALTER v. United States (1980) 447

U.S. 649, misdelivered pornographic

films were screened by both the

receivers and the FBI. Never the-

less, the Court deemed the FBI's

viewing of the films an

impermissible "search" without a

search warrant.

Under the Fourth Amendment, any object

from which one person has a right to

exclude another, even though tempora-

rily, is a candidate for protection.

(Exclusion means sealing or keeping the

key to lock others out.)

The Fourth Amendment applies to a

search whenever the government parti-

Ccipates in any significant way in it.

USCA Const Amend 4.

When search and not arrest is real

object of officers entering upon

one's premises and arrest is pretext

for or at most incident to search,

there is “unreasonable search".

U.S. v. Kowal, D.C.R.I. 197 F. Supp.

401, 404. See also CHADWICK and

SANDERS in Add.

A “search" must begin with a plan and

can continue until expropriation of the

object thereof. (But what does pawn's

10-year-old souvenirs as Exx. 17, 18 and

19 prove about his work a decade later?)

. The police can only take what appears

likely to be the products or instruments

of crime. This limitation is as. basic

as protection against involuntary self-

incrimination to which it is a close

kin. (For sure, warrantless officials

cannot seal personal property as

"Evidence, Napa County Sherrif's

Office". Ex. i-e.)

IN SUM, "2-d" argues that personal papers

were expropriated without due process in

order to insure eventual termination of

a@ permanent public peon with help from

pawn's private files.

(e)

Can Peons Be Punished Without

Charges? (r. 20) Const. Amend. 5.

II:21 (r. 58) pin-points date of decision,

without written charges until 4 weeks

later, to dismiss before computer

"disappeared":

Dr. Ortega's secretary: Well,

when I left on Wednesday at noon,

whatever -- as far as I knew, you

were on administrative leave, I

believe.

Dr. Ortega: Right.

A: When [I came back, I

understood that you had been

dismissed.

Q: And that was what date?

A: That was on a Monday, I

think.

Q: Monday of the day --

A: That the computer --

Q: -- that I told you the

computer --

A: The morning you called and

said you had the computer.

Q: And who said I was

dismissed then?

A: Doroty (Dr. Ortega's

executive secretary) had told me.

Now, wait a minute. I had

understood that through my husband

(Mr. Friday's chief engineer).

Q: That I was dismissed?

A: That you had been dismissed

because of this investigatio.

Q: On that Monday, I had

already been dismissed?

A: Yes.

Dr. Ortega: Thank you.

That same morning, respondent received

a hand-delivered extension of his ad-

ministrative leave, effective that day,

though back-dated to the very Friday

when his "vacation" was supposed to end,

but no questions about the computer,

probably because the court had already

refused to issue an order to retrieve

it.

BRYANT v. SPB (1950) 96 CA 2d 423, 215 P

ed 512:

If notice is required, the

complaint must state sufficient

facts to show that the accused

committed some type of prohibited

conduct.