Petition for Writ of Certiorari — Braun v. Bureau of State Audits

Supreme Court brief1999

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Text

‘ ’ Supreme Court, U.S.

at FILED

@8 1927 WN2 19

sce of IME CLERK

In The

Supreme Court of the United States

ODELIA S. BRAUN,

Petitioner,

BUREAU OF STATE AUDITS, KURT SJOBERG, ANN

CAMPBELL, AND DORE TANNER,

Respondents.

On Petition For A Writ Of Certiorari

To The California Court Of Appeal,

First District

PETITION FOR A WRIT OF CERTIORARI

Myron Moskovitz

2371 Eunice St.

Berkeley, California 94708

Phone: (510) 524-1626

Counsel of Record for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Ai \ek

QUESTIONS PRESENTED

1. Should this Court’s opinion in Paul v. Davis, 425

U.S. 985 (1976) be overruled?

2. Should this Court’s opinion in Paul v. Davis, 425

U.S. 985 (1976) be limited, so that it does not apply to

state agencies which do not hold “formalized proceed-

ings” but which nevertheless have the power to destroy

state employees’ reputations and careers?

3. Do California’s statutes empowering its State _

Auditor to issue reports to the public defaming state

employees, without giving such employees any rights to

notice, to hearing, to confront accusers, or to counsel,

violate such employees’ rights to Due Process of law

under the 14th Amendment and give rise to a cause of

action under 42 U.S.C. § 1983?

4. Did Dr. Braun’s complaint state a cause of action

under 42 U.S.C. § 1983?

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS & STATUTES

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A SUMMARY OF THIS PETITION........... ; Py 12

SIATEMEN!S OF THE CASE... ssscccdvedexe¥ecsevs 13

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The Court of Appeal Opinion..................4.4. 18

REASONS FOR GRANTING THE PETITION....... 20

California’s Whistleblower Statutes........... ie 20

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Paul v. Davis Should Be Overruled or Clarified .... 26

Paul v. Davis Has Led To Conflicts and Confu-

ston in Tre Lower Gout .6iss00c00seess eee 29

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TABLE OF AUTHORITIES

Page

Cases

Blaylock v. Schwinden, 862 F.2d 1352 (9th Cir.1988) .... 19

Cerrato v. San Francisco Community College District,

Be Wee DO Ce Ce 6 occ chive scveccccensesens 19

Green v. DeCamp, 612 F.2d 368 (8th Cir.1980) ........ 30

Goulding v. Feinglass, 811 F.2d 1099 (7th Cir.), cert.

denied, 482 U.S. 929 (1987) ..........-- + secre eee es 30

Hafer v. Melo S02 U.S. 21 (1991)... -cccccccccesevess 19

Jenkins v. McKeithen, 395 U.S. 411 (1969).. 22, 24, 25, 28

Joint Anti-Fascist Refugee Comm. v. McGrath, 341

ED hence) hae bs du Het ewen iu eneees ve ves 27

Little v. City of North Miami, 805 F.2d 962 (11th

St ocean chen iseeene yuck soe e rid iene seen ss 29

Marrero v. City of Hialeah, 625 F.2d 499 (5th

Cir.1980), cert. denied, 450 U.S. 913 (1981)........ 29

Neu v. Corcoran, 869 F.2d 662 (2d Cir.1989).......... 29

Paul v. Davis, 424 U.S. 693 (1976) ............... passim

Price v. Akaka, 928 F.2d 824 (9th Cir.1990) ........... 20

Sullivan v. State of New Jersey, 602 F.Supp. 1216

(D.N.J.1985), aff’d 853 F.2d 921 (3d Cir.1988)...... 30

Will v. Michigan Dept. of State Police, 491 U.S. 58

he RU a eeius bene Absa bavesaceresexs cess 19

Wisconsin v. Constantineau, 400 U.S. 433 (1971)

ee ee ee ee ce chad hb een eee es 22, 23, 24, 26

WMxX Technologies, Inc. v. Miller, 80 F.3d 1315 (9th

Seok be sbkctswantuericcessnveceuens 26, 29

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONAL PROVISIONS

Section 1 of 14th Amendment................. 1, 22, 25

Statutes & RULES

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GE UE, & Wk dc cave dcnekcnsensevavesveceses passim

Cons Ge Se Be Sikkhce adesks ta cveuess 18

California Government Code §§ 8543 et seq. ..... 20, 27

California Government Code §§ 8547 through

Gb nceswenus eer eeseees Ciena dense eaeeeeeens 2, 20

Cees TONE Ge © OE 6 oc ded ev ccewisdsawssees 15

California Penal Code § 504..................... 15, 16

Pe Cite Uy. UP OEE 6 orn 6co0enesouerasncbsceancens 28

Hawaii Rev.Stat. tit. 7, § 84-21 & § 84-31............ 28

Eames. TR. Gh, B Fam B BOGE cc des cccesevesccecacnevs 28

DE EO & TDD ois ev ccecceenevisvesscstes 28

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PETITION FOR A WRIT OF CERTIORARI

Dr. Odelia S. Braun respectfully petitions for a writ of

certiorari to review the judgment of the California Court

of Appeal, First District, in this case.

OPINIONS BELOW

The opinion of the Court of Appeal is attached hereto

as Appendix A.

JURISDICTION

The California Court of Appeal, First District, filed its

opinion on November 23, 1998. A copy of that opinion is

attached hereto as Appendix A. The California Supreme

Court denied the petition for review on March 9, 1999. A

copy of that order is attached hereto as Appendix B.

This Court has jurisdiction under 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS & STATUTES

INVOLVED IN THIS CASE

Section 1 of Fourteenth Amendment to the United

States Constitution

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 immunities 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 equal protection of

the laws.

California’s “Reporting of Improper Governmental

Activities Act”

(California Government Code Sections 8547 through

8547.12)

8547. Short title

This article shall be known and may be cited as the

“Reporting of Improper Governmental Activities Act.”

8547.1. Legislative intent; disclosure of improper activities

It is the intent of the Legislature that state employees

and other persons should disclose, to the extent not

expressly prohibited by law, improper governmental

activities.

8547.2. Definitions

For the purposes of this article:

(a) “Employee” means any individual appointed by the

Governor or employed or holding office in a state agency

as defined by Section 11000.

(b) “Improper governmental activity” means any activ-

ity by a state agency or by an employee that is under-

taken in the performance of the employee's official

duties, whether or not that action is within the scope of

his or her employment, and that (1) is in violation of any

state or federal law or regulation, including, but not

limited to, corruption, malfeasance, bribery, theft of gov-

ernment property, fraudulent claims, fraud, coercion,

conversion, malicious prosecution, misuse of government

property, or willful omission to perform duty, or (2) is

economically wasteful, or involves gross misconduct,

incompetency, or inefficiency. For purposes of Sections

8547.4, 8547.5, 8547.10, and 8547.11, “improper govern-

mental activity or activities” includes any activity by the

University of California or by an employee, including an

officer or faculty member, that otherwise meets the crite-

ria of this subdivision.

association, any state or local government, or any agency

or instrumentality of any of the foregoing.

(d) “State agency” is defined by Section 11000. “State

agency” includes the University of California for pur-

poses of Sections 8547.5 to 8547.7, inclusive.

8547.3. Use or attempted use of official authority or influence

to interfere with disclosure of information; prohibi-

tion; civil liability

(a) An employee may not directly or indirectly use or

attempt to use the official authority or influence of the

employee for the purpose of intimidating, threatening,

coercing, commanding, or attempting to intimidate,

threaten, coerce, or command any person for the purpose

of interfering with the right of that person to disclose to

the State Auditor matters within the scope of this article.

(b) For the purpose of subdivision (a), “use of official

authority or influence” includes promising to confer, or

conferring, any benefit; effecting, or threatening to effect,

any reprisal; or taking, or directing others to take, or

recommending, processing, or approving, any personnel

action, including, but not limited to, appointment, pro-

motion, transfer, assignment, performance evaluation,

suspension, or other disciplinary action.

liable in an action for civil damages brought against the

employee by the offended party.

(d) Nothing in this section shall be construed to autho-

rize an individual to disclose information otherwise pro-

hibited by or under law.

4 on

8547.4. Administrative authority

The State Auditor shall administér thé provisions of this

article and shall investigate and report on improper gov-

ernmental activities.

8547.5. Investigative audits

Upon receiving specific information that any employee or

state agency has engaged in an improper governmental

activity, the State Auditor may conduct an investigative

audit of the matter. The identity of the person providing

the information that initiated the investigative audit shall

not be disclosed without the written permission of the

person providing the information unless the disclosure is

to a law enforcement agency that is conducting a criminal

investigation.

8547.6. Assistance in conduct of investigative audits

The State Auditor may request the assistance of any state

department, agency, or employee in conducting any

investigative audit required by this article. If an investi-

gative audit conducted by the State Auditor involves

access to confidential academic peer review records of

University of California academic personnel, these

records shall be provided in a form consistent with uni-

versity policy effective on August 1, 1992. No information

obtained from the State Auditor by any department,

agency, or employee as a result of the State Auditor’s

request for assistance, nor any information obtained

thereafter as a result of further investigation, shall be

divulged or made known to any person without the prior

approval of the State Auditor.

8547.7. Report of improper governmental activities; enforce-

ment authority

(a) If the State Auditor determines that there is reason-

able cause to believe that an employee or state agency has

engaged in any improper governmental activity, he or she

shall report the nature and details of the activity to the

head of the employing agency, or the appropriate

appointing authority. If appropriate, the State Auditor

shall report this information to the Attorney General, the

policy committees of the Senate and Assembly having

jurisdiction over the subject involved, and to any other

authority that the State Auditor determines appropriate.

(b) The State Auditor shall not have any enforcement

power. In any case in which the State Auditor submits a

report of alleged improper activity to the head of the

employing agency or appropriate appointing authority,

that individual shall report to the State Auditor with

respect to any action taken by the individual regarding

the activity, the first report being transmitted no later

than 30 days after the date of the State Auditor’s report

and monthly thereafter until final action has been taken.

except that the State Auditor may issue any report of an

investigation that has been substantiated, keeping confi-

dential the identity of the individual or individuals

involved, or release any findings resulting from an inves-

tigation conducted pursuant to this article that is deemed

necessary to serve the interests of the state.

(d) This section shall not limit any authority conferred

upon the Attorney General or any other department or

agency of government to investigate any matter.

eee eee ee

8547.8. Reprisals or other improper acts for disclosure of

improper governmental activities; complaints; limita-

tion of actions; civil and criminal penalties

(a) A state employee or applicant for state employment

who files a written complaint with his or her supervisor,

manager, or the appointing power alleging actual or

attempted acts of reprisal, retaliation, threats, coercion, or

similar improper acts prohibited by Section 8547.3, may

also file a copy of the written complaint with the State

Personnel Board, together with a sworn statement that

the contents of the written complaint are true, or are

believed by the affiant to be true, under penalty of per-

jury. The complaint filed with the board, shall be filed

within 12 months of the most recent act of reprisal com-

plained about.

(b) Any person who intentionally engages in acts of

reprisal, retaliation, threats, coercion, or similar acts

against a state employee or applicant for state employ-

ment for having disclosed improper governmental activ-

ities, is subject to a fine not to exceed ten thousand

dollars ($10,000) and imprisonment in the county jail for

up to a period of one year. Any state civil service

employee who intentionally engages in that conduct shall

be disciplined by adverse action as provided by Section

19572. If no adverse action is instituted by the appointing

power, the State Personnel Board shall invoke adverse

action as provided in Section 19583.5.

any person who intentionally engages in acts of reprisal,

retaliation, threats, coercion, or similar acts against a state

employee or applicant for state employment for having

disclosed improper governmental activities shall be liable

in an action for damages brought against him or her by

the injured party. Punitive damages may be awarded by

the court where the acts of the offending party are proven

to be malicious. Where liability has been established, the

injured party shall also be entitled to reasonable attor-

ney’s fees as provided by law. However, any action for

damages shall not be available to the injured party unless

the injured party has first filed a complaint with the State

Personnel Board pursuant to subdivision (a) of this sec-

tion, and the board has failed to reach a decision regard-

ing any hearing conducted f trsuant to Section 19683.

(d) This section is not intended to prevent an appointing

power, manager, or ‘supervisor from taking, directing

others to take, recommending, or approving any person-

nel action or from taking or failing to take a personnel

action with respect to any state employee or applicant for

state employment if the appointing power, manager, or

supervisor reasonably believes any action or inaction is

justified on the basis of evidence separate and apart from

the fact that the person has disclosed improper govern-

mental activities as defined in subdivision (b) of Section

8547.2.

8547.9. Transmission of investigative report to state auditor

Notwithstanding Section 19572, if the State Personnel

Board determines that there is a reasonable basis for an

alleged violation, or finds an actual violation of Section

8547.3 or 19683, it shall transmit a copy of the investiga-

tive report to the State Auditor. All working papers per-

taining to the investigative report shall be made available

under subpoena in a civil action brought under Section

19683.

8547.10. University of California employees; complaints or

reprisal or other improper acts for disclosure of

improper governmental activities; civil and criminal

penalties

(a) A University of California employee, including an

officer or faculty member, or applicant for employment

may file a written complaint with his or her supervisor or

manager, or with any other university officer designated

for that purpose by the regents, alleging actual or

attempted acts of reprisal, retaliation, threats, coercion, or

similar improper acts for having disclosed improper gov-

ernmental activities, together with a sworn statement that

the contents of the written complaint are true, or are

believed by the affiant to be true, under penalty of per-

jury. The complaint shall be filed within 12 months of the

most recent act of reprisal complained about.

(b) Any person who intentionally engages in acts of

reprisal, retaliation, threats, coercion, or similar acts

against a University of California employee, including an

officer or faculty member, or applicant for employment

for having disclosed improper governmental activities, is

subject to a fine not to exceed ten thousand dollars

($10,000) and imprisonment in the county jail for up to a

period of one year. Any university employee, including

an officer or faculty member, who intentionally engages

in that conduct shall also be subject to discipline by the

university.

any person who intentionally engages in acts of reprisal,

retaliation, threats, coercion, or similar acts against a

university employee, including an officer or faculty mem-

ber, or applicant for employment for having disclosed

improper governmental activities shall be liable in an

action for damages brought against him or her by the

a os

injured party. Punitive damages may be awarded by the

court where the acts of the offending party are proven to

be malicious. Where liability has been established, the

injured party shall also be entitled to reasonable attor-

ney’s fees as provided by law. However, any action for

damages shall not be available to the injured party unless

the injured party has first filed a complaint with the

university officer identified pursuant to subdivision (a),

and the university has failed to reach a decision regard-

ing that complaint within the time limits established for

that purpose by the regents.

(d) This section is not intended to prevent a manager or

supervisor from taking, directing others to take, recom-

mending, or approving any personnel action or from

taking or failing to take a personnel action with respect to

any university employee, including an officer or faculty

member, or applicant for employment if the manager or

supervisor reasonably believes any action or inaction is

justified on the basis of evidence separate and apart from

the fact that the person has disclosed improper govern-

mental activities.

8547.11. Use or attempt by University of California

employees to use official authority or influence to

interfere with disclosure of information; prohibi-

tion; civil liability

(a) A University of California employee, including an

officer or faculty member, may not directly or indirectly

use or attempt to use the official authority or influence of

the employee for the purpose of intimidating, threaten-

ing, coercing, commanding, or attempting to intimidate,

threaten, coerce, or command any person for the purpose

of interfering with the right of that person to disclose to a

University of California official, designated for that pur-

pose by the regents, or the State Auditor matters within

the scope of this article.

(b) For the purpose of subdivision (a), “use of official |

authority or influence” includes promising to confer, or

conferring, any benefit; effecting, or threatening to effect,

any reprisal; or taking or directing others to take, or

recommending, processing, or approving, any personnel |

action, including, but not limited to, appointment, pro-

motion, transfer, assignment, performance evaluation,

suspension, or other disciplinary action.

liable in an action for civil damages brought against the

employee by the offended party.

(d) Nothing in this section shall be construed to

authorize an individual to disclose information otherwise

prohibited by or under law.

8547.12. California State University employees; complaints

alleging reprisal or other actual or attempted acts in

response to disclosure of improper governmental

activities; penalties; conflict with memorandum of

understanding

(a) A California State University employee, including an

officer or faculty member, or applicant for employment

may file a written complaint with his or her supervisor or

manager, or with any other university officer designated

for that purpose by the trustees, alleging actual or

attempted acts of reprisal, retaliation, threats, coercion, or

similar improper acts for having disclosed improper gov-

ernmental activities, together with a sworn statement that

the contents of the written complaint are true, or are

iii

believed by the affiant to be true, under penalty of per-

jury. The complaint shall be filed within 12 months of the

most recent act of reprisal complained about.

(b) Any person who intentionally engages in acts of

reprisal, retaliation, threats, coercion, or similar acts

against a California State University employee, including

an officer or faculty member, or applicant for employ-

ment for having disclosed improper governmental activ-

ities, is subject to a fine not to exceed ten thousand

dollars ($10,000) and imprisonment in the county jail for

up to a period of one year. Any university employee,

including an officer or faculty member, who intentionally

engages in that conduct shall also be subject to discipline

by the university.

any person who intentionally engages in acts of reprisal,

retaliation, threats, coercion, or similar acts against a

university employee, including an officer or faculty mem-

ber, or applicant for employment for having disclosed

improper governmental activities shall be liable in an

action for damages brought against him or her by the

injured party. Punitive damages may be awarded by the

court where the acts of the offending party are proven to

be malicious. Where liability has been established, the

injured party shall also be entitled to reasonable attor-

ney’s fees as provided by law. However, any action for

damages shall not be available to the injured party unless

the injured party has first filed a complaint with the

university officer identified pursuant to subdivision (a),

and the university has failed to reach a decision regard-

ing that complaint within the time limits established for

that purpose by the trustees. Nothing in this section is

intended to prohibit the injured party from seeking a

remedy if the university has not satisfactorily addressed

the complaint within 18 months.

(d) This section is not intended to prevent a manager or

supervisor from taking, directing others to take, recom-

mending, or approving any personnel action, or from

taking or failing to take a personnel action with respect to

any university employee, including an officer or faculty

member, or applicant for employment if the manager or

supervisor reasonably believes any action or inaction is

justified on the basis of evidence separate and apart from

the fact that the person has disclosed improper govern-

mental activities.

(e) If the provisions of this section are in conflict with

the provisions of a memorandum of understanding

reached pursuant to Chapter 12 (commencing with Sec-

tion 3560) of Division 4 of Title 1, the memorandum of

understanding shall be controlling without further legis-

lative action.

A SUMMARY OF THIS PETITION

As interpreted by the California Court of Appeal in

this case, California’s “whistleblower protection” statutes

authorize the California State Auditor to issue a report

publicly defaming a state employee - without offering

that employee any right to notice, to a hearing, to offer

rebuttal evidence, or any other procedural rights. Thus,

in the present case, the Auditor was authorized by statute

to release a report to California’s newspapers “finding”

that Petitioner - a physician in charge of a program on

emergency medical care, at the University of California

Medical Center - had embezzled public funds, having

given the physician no procedural rights before making

and issuing this “finding.” This has effectively destroyed

the physician’s career in public health.

This result appears to be consistent, however, with

this Court’s decision in Paul v. Davis, 424 U.S. 693 (1976),

which held that a person’s reputation is not “liberty” or

“property” as those words are used in the Due Process

Clause of the 14th Amendment.

We submit that it is time for this Court to reexamine

Paul — and to overrule or clarify that decision. We doubt

that the Court intended to permit state agencies to ruin a

state employee’s right to earn a living in her chosen

career without at least minimal procedural protections.

STATEMENT OF THE CASE

The Complaint

Dr. Braun’s third amended complaint (CT 346)

alleges the following.

In 1985, Dr. Braun was appointed Assistant Clinical

Professor of Medicine at the University of California

Medical Center in San Francisco (“UCSF”). 1 & 450 of

Complaint, CT 347, 354. In 1987, she was appointed Medi-

cal Director for the Center for Prehospital Research and

Training program (“CPRT”). 954, CT 354. (CPRT sup-

ported emergency medical services in the San Francisco

community, providing training for the San Francisco Fire

Department.) Dr. Michael Callaham was chief of the Divi-

sion of Emergency Medicine at UCSF and was Dr. Braun’s

supervisor. 15, CT 347-348. Dr. Floyd Rector was Chair of

the Department of Medicine and was Dr. Callaham’s

supervisor. 47, CT 348.

In 1992, Dr. Braun accused Dr. Callaham of misap-

propriating her research and claiming it as his own in

articles he had published. 958, 459, CT 353. Dr. Callaham

retaliated by initiating audits of Dr. Braun’s program and

falsely claiming that Dr. Braun was responsible for finan-

cial improprieties (including embezzlement) while direct-

ing CPRT. 459, 464, 465, 493, CT 359-361, 375.

In fact, Dr. Rector — not Dr. Braun - was responsible

for the financial management of CPRT. In order to avoid

taking responsibility for the financial system used by

CPRT, Dr. Rector falsely told the California Bureau of

State Audits that Dr. Braun was responsible for an

improper payroll system and other financial impropri-

eties. 481, 482, 483, 490, 499, CT 365-367, 374, 377-378.

In June of 1994, Bureau of State Audits personnel

leaked to the press confidential information regarding its

investigation of CPRT. 4212, CT 423-424. This resulted in

a series of articles about CPRT in August of 1994 in the

San Francisco Chronicle, which contained false and

defamatory statements about how CPRT was managed.

1184-187, CT 416-417.

On November 21, 1994, the Bureau of State Audits

released its report on CPRT to the “Capitol Press Corps”

— representative of the state’s leading newspapers. 4114,

1126, CT 383, 387-388.! While this report did not mention

Dr. Braun by name, it castigated the “CPRT administra-

tor” and referred to this person by a feminine pronoun

(“she” and “her”). The San Francisco Chronicle had no

trouble identifying this person for its readers as Dr. Ode-

lia Braun. CT 783-784. The report stated that the Bureau’s

investigation was initiated when “we received an allega-

tion under the Reporting of Improper Governmental

Activities Act,” i.e., an accusation from a person pro-

tected by California’s “whistleblower” statutes. CT 494.

! In addition, the Bureau placed the report on the Internet.

See http:/www.bsa.ca.gov/bsa/since93.html.

—— _—— nae

a RN

The report makes no mention of the identity of the person

making this allegation.

The report concluded that the “CPRT administrator”

had engaged in illegal and “criminal” activities.

4125-4141, CT 387-403. The Bureau reported that Dr.

Braun committed many criminal violations. The Bureau's

report states on its title page that “Employees Of The

University of California, San Francisco, Improperly and

Illegally Managed The Center For Prehospital Research

and Training.” CT 480. The report goes on to find that “A

CPRT administrator . . . conspired to submit falsified

payroll documents” (CT 490; see also CT 506)?, that “A

CPRT administrator and another CPRT official misused

university resources for their personal use and benefit”

(CT 492)3, that “the CPRT Administrator” was involved

in violations of California Penal Code § 72 and California

Penal Code § 424 (submission of false claims for pay-

ment) (CT 507) and in “falsifying payroll records” and

“falsifying time sheets” (CT 508), that “the CPRT admin-

istrator” committed misdemeanors (Govt. Code § 6203)

by submitting false certifications (CT 515), that “the CPRT

administrator used UCSF resources for personal benefit”

(CT 548),4 and that “The CPRT administrator also used

assets deposited to the foundation account to benefit

2 Conspiracy to “cheat or defraud” or to commit any act

injurious to “due administration of the laws” is a felony.

California Penal Code § 182.

3 This would be embezzlement by a public official - a

felony. See California Penal Code § 504.

4 This too would be embezzlement under California Penal

Code § 504.

herself and her relatives” (CT 550).5 The Bureau sent its

report to the State Department of Justice and to the San

_ Francisco District Attorney’s Office. CT 387.° Neither of

those agencies chose to prosecute Dr. Braun. Thus, Dr.

Braun was never given any forum in which to show the

world that she was not the criminal which the Bureau had

labeled her. |

The report noted that the University disagreed with

many of the Bureau’s conclusions and findings and had

submitted a list of errors in the report. In fact, the Univer-

sity had informed the Bureau that Dr. Rector — not Dr.

Braun - was responsible for the financial management of

CPRT. 481, CT 365. Nevertheless, the Bureau announced

that it stood by all of its findings and conclusions. CT

568-569.

In fact, the Bureau’s accusations against Dr. Braun

were false. 4125 through 4132, CT 387-393. The Depart-

ment of Medicine (which was run by Dr. Rector — not Dr.

Braun) was responsible for financial management of

CPRT. 4140, CT 401-402. Dr. Braun had no role in the

payroll mechanism which the Bureau had criticized.

1130, CT 390-391. (UCSF officials - including its General

Counsel - had told the Bureau that accusations against |

Dr. Braun were false, but the Bureau had disagreed. 483,

1126, 127, 4133-4136, 4138; CT 366-367, 387-388, 401.)

On the same day the Bureau of State Audits released

its report, UCSF advised Dr. Braun that it was closing

SS eee

5 This too would be embezzlement under California Penal

Code § 504.

including UCSF, the State Department of Justice, the Internal

Revenue Service, the San Francisco District Attorney’s Office,

the State Legislature, and the Governor. 4125, 4126, CT 387-388.

iterate

CPRT “for financial reasons” and that she was termi-

nated. 4114, CT 383-384.

Two days after the Bureau issued its report to the

press, The San Francisco Chronicle began running a series

of stories about CPRT, mentioning Dr. Braun by name and

falsely accusing her of financial improprieties. 4100-4109,

CT. 378-381. For example, the Chronicle falsely informed

its readers that “Braun conspired with center employees

to submit falsified payroll sheets.” 4100, CT 378. See also

CT 784.

The complaint alleges that Bureau investigators Ann

Campbell and Dore Tanner and State Auditor Kurt Sjor-

berg committed the torts of intentional and negligent

infliction of emotional distress (4167-4171, 4195, CT

411-412, 420), defamation (4176, CT 413), and negligence

({203, CT 422), and also violated Dr. Braun’s right to Due

Process of law (4207-215, CT 423-425).

This Due Process claim alleges that these defendants

failed to inform Dr. Braun of the charges against her,

refused to grant her access to the evidence against her,

and ignored material submitted by her. Ibid. These Due

Process violations caused Dr. Braun loss of her employ-

ment and injury to her career and professional reputa-

tion. 4215, CT 424-425.

The trial court sustained those parties’ demurrer to

the complaint, without leave to amend, and dismissed the

complaint. CT 916-920, 930-931. The California Court of

Appeal affirmed on November 23, 1998. Slip opinion

(attached as Appendix A), page 17. The California

Supreme Court denied Dr. Braun’s petition for review on

March 9, 1999.7

The Court of Appeal Opinion

The Court of Appeal opinion is partially published,

at 67 Cal.App.4th 1382, 79 Cal.Rptr.2d 791. It appears in

full in Appendix A to this Petition.

The Court of Appeal heid that California Civil Code

§ 47 bestows an “absolute privilege” on Bureau of State

Audit officials to defame public employees. Slip Opinion,

pages 7-13. |

The Court of Appeal noted that the complaint

included a cause of action for denial of Due Process

rights. Slip opinion, pages 5-6. The Court held, however,

that Dr. Braun had no right to damages against these

defendants for depriving Dr. Braun of her “liberty” or

“property” without due process of law. The Court held

that, while 42 U.S.C. § 1983 permits damage actions

against state officials for violations of the Due Process

Clause of the federal Constitution, this is permitted only

when such officials are sued in their “individual” capaci-

ties, and Dr. Braun’s complaint failed to allege this with

sufficient specificity. Slip Opinion, pages 16-17.8

7 The complaint also named the University of California

and the San Francisco Chronicle as defendants. The University

settled with Dr. Braun, and the Court of Appeal held that the

Chronicle’s defamatory statements were privileged (in an

earlier opinion, reported at 52 Cal.App.4th 1036).

8 This ruling was mistaken. The Court of Appeal stated that

the complaint “merely alleges that the individual respondents

are residents of the state, and that they acted ‘at least in part’ in

the course and scope of their employment with the Bureau.” Of

course the complaint alleged that these defendants acted “at

——

ee eae Se TT

Therefore, the Court found it unnecessary to decide

whether a state employee is entitled to any Due Process

least in part” for a state agency. Otherwise, the complaint would

have failed to state a cause of action under § 1983, which applies

only to acts committed “under color of state law.”

The Court of Appeal misunderstood the distinction

between suing state officials in their individual capacities and

alleging that they acted as individuals when they committed their

unconstitutional acts. The former is required for a § 1983 damage

suit; the latter would take the case out of § 1983.

In Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989),

this Court held that a state is not a “person” under § 1983, and

therefore is not subject to suit under § 1983. And, while

“person” does include a state official, “a suit against a state

official in his or her official capacity is not a suit against the

official but rather is a suit against the official’s office. [Citation.]

As such, it is no different from a suit against the state itself.” Id.

at 71. But Will was distinguished in Hafer v. Melo, 502 U.S. 21

(1991), where the Court held that “state officials sued in their

individual capacities are ‘persons’ for purposes of 1983.” Id. at

23. The Court explained, “the claims considered in Will were

official-capacity claims as the phrase ‘acting in their official

capacities’ is best understood as a reference to the capacity in

which the state officer is sued, not the capacity in which the

officer inflicts the alleged injury.’ Id. at 26; emphasis added.

In the present case, the complaint sues defendants

Campbell, Tanner, and Sjorberg as individuals. The caption of

the complaint names these three defendants as individuals, and

not as state officials. CT 346. And there is nothing in the body of

the complaint which states that they are being sued in anything

but their individual capacities - even though the body of the

complaint alleges that they acted - “at least in part” - in their

official capacities.

And most important, the complaint seeks damages against

these officials personally. CT 433-434. Blaylock v. Schwinden, 862

F.2d 1352, 1354 (9th Cir.1988) (“damage actions brought under

42 U.S.C. § 1983 are generally viewed as suits against the

individual”). See also Cerrato v. San Francisco Community College

protections before the Bureau may release defamatory

statements about her to the press. Slip Opinion, page 16.

REASONS FOR GRANTING THE PETITION

We submit that the questions presented in this peti-

tion are of exceptional importance.

California’s Whistleblower Statutes

California Government Code §§ 8543 et seq. establish

the California Bureau of State Audits, which is headed by

the State Auditor. In 1993, the California Legislature

added to these statutes §§ 8547 et seq., called the “Report-

ing of Improper Governmental Activities Act” -— com-

monly called “The Whistleblower Act.” This Act protects

people who report alleged improper activities by govern-

ment employees to the Bureau of State Audits. Section

8547.5, for example, provides that the Bureau shall not

disclose the identity of such an informant without that

person’s consent.

The Act authorizes the State Auditor to investigate

reports from such informants (§ 8547.5). If the State Audi-

tor determines that there is “reasonable cause” to believe

that an employee has engaged in “any improper govern-

mental activity,” the Auditor “shall” report “the nature

and details” of the activity to the agency which employs

or appoints that employee. § 8547.7. There is nothing in

these statutes which prevents the Auditor from including

in these “details” the identity of the accused employee. In

District, 26 F.3d 968, fn. 16 (9th Cir.1994); Price v. Akaka, 928 F.2d

824, 828 (9th Cir.1990).

Thus, the complaint does properly seek damages against

these defendants for violating 42 U.S.C. § 1983.

addition, “if appropriate,” the State Auditor “shall”

report this information to the California Attorney Gen-

eral, the policy committees of the California legislature,

“and to any other authority that the State Auditor deems

appropriate.” Ibid., emphasis added. In the present case,

‘the Court of Appeal expressly held that this language

authorizes the State Auditor to release his report to the

press and to the public. Slip Opinion, pages 11-13.

An “improper governmental activity” is defined by

the Act as “any activity by a state agency or by an

employee that is undertaken in the performance of the

employee’s official duties, whether or not that action is

within the scope of his or her employment, and that (1) is

in violation of any state or federal law or regulation,

including, but not limited to, corruption, malfeasance,

bribery, theft of government property, fraudulent claims,

fraud, coercion, conversion, malicious prosecution, mis-

use of government property, or willful omission to

perform duty, or (2) is economically wasteful, or

involves gross misconduct, incompetency, or ineffi-

ciency.”§ 8547.2(b).

Nowhere does the Act provide any procedural pro-

tections for an accused employee. The Act fails to provide

for any notice of charges. The Act fails to provide any

right to a hearing. The Act fails to provide any right to

counsel. The Act fails to provide any right to confront the

“whistleblower” or even to know what the “whistle-

blower” has told the agency.

In sum, as interpreted by the California Court of

Appeal, the Act authorizes the State Auditor to issue a

public report “finding” that a government employee has

stolen government funds and committed other felonies -

even though the accused employee has been given no

procedural rights at all, and even though the effect of this

public “finding” is to destroy that employee’s career. And

that is exactly what happened in the present case. This,

we submit, is a violation of the Due Process Clause of the

14th Amendment.

But several opinions from this Court present an

unclear picture regarding whether such an employee has

been deprived of “liberty” or “property.” This Court has

held that a state agency which holds “formalized proceedings”

deprives an accused person of “liberty” or “property”

when it defames such a person. But the Court has also

held that local officials who hold no “formalized proceedings”

do not deprive one of “liberty” or “property” when they

destroy that person’s reputation. A state administrative

agency such as the California Bureau of State Audits does

not fit into either of these categories. Which rule applies

to such an agency?

The cause of this conundrum is Paul v. Davis, 424 US.

693 (1976).

Paul v. Davis

Paul was a departure from two prior cases: Jenkins v.

McKeithen, 395 U.S. 411 (1969), and Wisconsin v. Constant-

ineau, 400 U.S. 433 (1971).

In Jenkins, state statutes required a state Commission

to make public findings as to whether individuals had

violated state criminal laws regarding labor organizing.

Even though the statutes required the Commission to

grant witnesses the right to notice, the right to counsel,

and the right to submit questions for the Commission to

ask other witnesses, the Court held that these protections

were inadequate to satisfy procedural Due Process. “In

the present context, where the Commission allegedly

makes an actual finding that a specific individual is

guilty of a crime, we think that due process requires the

Commission to afford a person being investigated the

right to confront and cross-examine the witnesses against

him, subject only to traditional limitations on those

rights.” 395 U.S. at 429. The Court assumed, without

discussion, that the Commission had deprived the

accused individual of a “liberty” or “property” interest

under the Due Process Clause.

In Constantineau, the Court had held that a police

chief was liable under § 1983 for posting a notice in all

liquor stores that liquor was not to be sold to Constant-

ineau, because the chief had given no prior notice or

hearing to Constantineau regarding whether she merited

this treatment. The Court held that the police chief had

violated her right to procedural Due Process: “Where a

person’s good name, reputation, honor, or integrity is at

stake because of what the government is doing to him,

notice and an opportunity to be heard are essential.” 400

U.S. at 437.

In Paul v. Davis, two local police chiefs distributed

flyers to businesses stating that Davis was an “active

shoplifter.” Davis sued the two chiefs under 42 U.S.C.

§ 1983, claiming that they failed to give him a hearing

regarding the truth of this statement before the distribu-

tion, and this deprived him of “liberty”: he alleged that

the resulting harm to his reputation would inhibit him

from entering stores and “would seriously impair his

future employment opportunities.” 424 U.S. at 697. This

Court held that Davis failed to state a cause of action,

because his claim of injury was solely one of “stigma to

one’s reputation,” which was not sufficient to constitute

“liberty” as that term is used in the Due Process Clause of

the 14th Amendment.

Justices Brennan, Marshall, and White dissented in

Paul, noting that “The stark fact is that the police here

have officially imposed on respondent the stigmatizing

label ‘criminal’ without the salutary and constitutionally

mandated safeguards of a criminal trial.” Id. at 718. And

most pertinent to the present case, they wrote:

The logical and disturbing corollary of this

holding is that no due process infirmities would

inhere in a statute constituting a commission to

conduct ex parte trials of individuals, so long as

the only official judgment pronounced was lim-

ited to the public condemnation and branding of

a person as a Communist, a traitor, an “active

murderer,” a homosexual, or any other mark

that “merely” carries social opprobrium. The

potential of today’s decision is frightening for a

free people. [/d. at 721.]

The dissent also noted that the majority decision was

inconsistent with both Jenkins and Constantineau. But the

majority purported to “distinguish” both cases.

Regarding Constantineau, the majority quoted the fol-

lowing language from that case: “Where a person’s good

name, reputation, honor, or integrity is at stake because

of what the government is doing to him, notice and an

opportunity to be heard are essential.” 400 U.S. 433, 437.

The Court in Paul then stated:

We think that the italicized language in the

last sentence quoted, “because of what the gov-

ernment is doing to him,” referred to the fact

that the governmental action taken in that case

deprived the individual of a right previously

held under state law the right to purchase or

obtain liquor in common with the rest of the

citizenry. “Posting,” therefore, significantly

altered her status as a matter of state law, and it

was that alteration of legal status which, com-

bined with the injury resulting from the defama-

tion, justified the invocation of procedural

safeguards. The “stigma” resulting from the

defamatory character of the posting was doubt-

less an important factor in evaluating the extent

of harm worked by that act, but we do not think

that such defamation, standing alone, deprived

Constantineau of any “liberty” protected by the

procedural guarantees of the Fourteenth

Amendment. [424 U.S. at 708-709.]

The Court in Paul (at footnote 4, 424 U.S. at 706) also

distinguished Jenkins v. McKeithen:

We cannot agree with the suggestion of our

Brother BRENNAN, dissenting, Post, at 1173,

that the actions of these two petitioner law

enforcement officers come within the language

used by Mr. Justice Harlan in his dissenting

opinion in Jenkins v. McKeithen, 395 U.S. 411,

433, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). They

are not by any conceivable stretch of the imag-

ination, either separately or together, “an

agency whose sole or predominant function,

without serving any other public interest, is to

expose and publicize the names of persons it

finds guilty of wrongdoing.” Id., at 438, 89 S.Ct.,

at 1857, 23 L.Ed.2d, at 426. Indeed, the actions

taken by these petitioners in this case fall far

short of the more formalized proceedings of the

Commission on Civil Rights established by Con-

gress in 1957, the procedures of which were

upheld against constitutional challenge by this

Court in Hannah v. Larche, 363 U.S. 420, 80 S.Ct.

1502, 4 L.Ed.2d 1307 (1960). There the Court

described the functions of the Commission in

this language: “It does not adjudicate. It does

not hold trials or determine anyone’s civil or

criminal liability. It does not issue orders. Nor

does it indict, punish, or impose any Legal sanc-

tions. It does not make determinations depriv-

ing anyone of his life, liberty, or property. In

short, the Commission does not and cannot take

any affirmative action which will affect an indi-

vidual’s legal rights. The only purpose of its

existence is to find facts which may subse-

quently be used as the basis for legislative or

executive action.” Id., at 441, 80 S.Ct., at 1514, 4

L.Ed.2d, at 1321 (emphasis supplied).

Paul v. Davis Should Be Overruled or Clarified

Paul's handling of Constantineau has led to what some

call a “stigma-plus” test: mere stigma is not enough, and

there must also be some additional harmful effect on the

accused person. WMX Technologies, Inc. v. Miller, 80 F.3d

1315, 1319 (9th Cir.1996). This, however, has led to a

practical problem which Paul failed to consider. The most

common “plus” is likely to be an effect on the accused in

the future — usually loss of employment and career oppor-

tunities. When people learn of the official “finding,” they

will not hire the accused. But applicable statutes of lim-

itations and practical problems of proof require the

accused to file suit fairly soon after the “finding” is made

known to the public. Thus, the complaint will be filed

before much of the “plus” has had a chance to occur.

This is exactly what happened in the instant case.

The State Auditor’s report was issued on November 21,

1994, and Dr. Braun’s third amended complaint was filed

on February 6, 1996. She was unable to allege at that time

specific losses of employment opportunities, because they

had not yet occurred. But since that time, she has been

turned down by several prospective employers because

of the State Auditor’s report. Dr. Braun is now prepared

to prove this at trial, but she could not have alleged this

at the time her original or amended complaints were

filed.

We submit that Paul v. Davis is unworkable.-and

should be overruled. Stigma alone, if substantial, should

be sufficient to constitute “liberty” or “property” under

the Due Process Clause.

Paul's handling of Jenkins is problematic too. Paul

appeared to hold that Due Process protections apply only

to persons accused by “an agency whose sole or predomi-

nant function, without serving any other public interest, is

to expose and publicize the names of persons it finds

guilty of wrongdoing” and which does not hold “formal-

ized proceedings.” But how does this apply to an agency

like the California Bureau of State Audits? California Gov-

ernment Code § 8543.1 purports to set out the “duties” of

the Bureau: “to examine and report annually upon the

financial statements prepared by the executive department

and to perform other related assignments. . . . ” This does

not seem to come within the Paul's restrictive language

(quoted above). But there is other language in Paul which

suggests that even an agency with a broad mandate must

afford procedural protections to government employees: “But

the court has never held that the mere defamation of an

individual, whether by branding him disloyal or other-

wise, was sufficient to invoke the guarantees of procedural

due process absent an accompanying loss of government

employment.” 424 U.S. at 706; emphasis added.?

9 See also id. at 704, where the Court quotes Mr. Justice

Jackson's opinion in Joint Anti-Fascist Refugee Comm. v. McGrath,

341 U.S. 123, 184-185 (1951): “The real target of all this

procedure is the government employee who is a member of, or

sympathetic to, one or more accused organizations. He not only

may be discharged, but disqualified from employment, upon no

other ground than such membership or sympathetic

affiliation. .. . To be deprived not only of present government

employment but of future opportunity for it certainly is no

small injury when government employment so dominates the

field of opportunity.”

Where does the California Bureau of State Audits fit

into this? It publicly finds that state employees have

committed felonies, but it does not focus exclusively on

such activities. May it publicly defame government

employees without giving them any procedural rights?

Many similar agencies in other states do the same

thing. See, e.g., Wash.Rev.C. tit. 42, § 42.40.040 (state audi-

tor receiving information from whistleblower may issue

report to Attorney General or to “such other authority as

the auditor determines appropriate;” no procedural

rights are given to accused employee); Fla.Stat. tit. III,

§ 11.45 (state auditor shall make its report public, and

must “make special mention” of any violation of law and

any illegal expenditure; no procedural protections are

given to accused employee); Mich.Comp.Laws § 15.345

(no procedural protections given to accused employee).!°

Thus, until these questions are resolved, millions of

state employees throughout the country are subject to

wanton destruction of rights to earn a living in their

chosen careers with no Due Process protections.

We submit that Paul’s restrictive language distin-

guishing Jenkins should be overruled or clarified.

10 By contrast, several states give accused employees

greater procedural protections from state agencies investigating

and reporting employee misbehavior. See, e.g., Ore.Rev.Stat. tit.

22, § 244.260 (giving accused employee right to notice of

charges, but no other procedural rights); Hawaii Rev.Stat. tit. 7,

§ 84-21 & § 84-31 (giving accused employee right to notice of

charges and rights to be heard, to subpoena witnesses and

require production of documents, and to cross-examine);

La.Stat. tit. 36, § 313, § 1141 (giving accused employee right to

notice, counsel, cross-examine, call witnesses, and present

evidence); Penna.Stat. tit. 65, § 408 (giving accused employee

right to notice, right to request evidentiary hearing, and “due

process” rights at hearing).

Paul also expressed concerns about federalism: that

an expansive reading of § 1983 would interfere with

states’ rights to regulate their own affairs, and would

tend to replace state defamation laws. But § 1983 was

designed to give a federal remedy where state courts

might tend to favor state or local officials charged with

violating Constitutional protections. And this is exactly

what has happened in the present case. The California

Court of Appeal has interpreted state defamation law to

give wide immunity to Bureau of State Audits officials. If

Dr. Braun is given no remedy under § 1983, then she will

have no remedy at all.

Paul v. Davis Has Led To Conflicts and Confusion In

The Lower Courts

In Neu v. Corcoran, 869 F.2d 662, 667 (2d Cir.1989), the

Court of Appeals for the Second Circuit stated: “ ‘stigma

plus’ is required to establish a constitutional deprivation,

but it is not entirely clear what the plus is.”

In Marrero v. City of Hialeah, 625 F.2d 499, 513-516 (5th

Cir.1980), cert. denied, 450 U.S. 913 (1981), the Fifth Cir-

cuit Court of Appeals held that the “stigma-plus” test of

Paul v. Davis is satisfied if the “plus” is loss of business

goodwill — even though that loss was inflicted by private

“third” parties, rather than by the government. But in

WMxX Technologies, Inc. v. Miller, supra, 80 F.3d 1315 (9th

Cir.1996), the Ninth Circuit refused to follow Marrero.

“We conclude today that the ‘stigma plus’ test requires

that the defamation be accompanied by an injury directly

caused by the Government, rather than an injury caused

by the act of some third party.” Id. at 1320. Throughout

the country, decisions are in conflict on this issue. Some

hold as Marrero did. See e.g., Little v. City of North Miami,

805 F.2d 962, 969 (11th Cir.1986). And some hold as WMX

did. See, e.g., Green v. DeCamp, 612 F.2d 368, 370, 371 (8th

Cir.1980); Goulding v. Feinglass, 811 F.2d 1099 (7th Cir.),

cert. denied, 482 U.S. 929 (1987); Sullivan v. State of New

Jersey, 602 F.Supp. 1216, 1222 (D.N.J.1985), aff’d 853 F.2d

921 (3d Cir.1988).

This Court should grant the present petition in order

to resolve this conflict.

CONCLUSION

California’s “Reporting of Improper Governmental

Activities Act” subjects 426,700 California state

employees and 1,530,500 local government employees'!

to destruction of their reputations without Due Process of

law. And similar laws in other states do the same. Until

Paul v. Davis is overruled or clarified, this problem will

continue.

We respectfully request this Court to accept this case

for review, in order to settle the important questions of

law discussed in this Petition.

Respectfully submitted,

Myron Moskovitz

2371 Eunice St.

Berkeley, California 94708

Phone: (510) 524-1626

Counsel of Record

for Petitioner

Date: June 1, 1999

1! Source: California Labor Force & Industry Employment,

November, 1998.

APPENDIX A

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE

OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ODELIA S. BRAUN, )

Plaintiff and -»)- 4079428

Appellant, (San Francisco County

Vv ) Super. Ct. No.

. 970990).

BUREAU OF STATE

AUDITS et al., } (Filed Nov. 23, 1998)

Defendants and )

Respondents. )

)

Odelia Braun appeals from the judgment in favor of

respondents the Bureau of State Audits (Bureau), State

Auditor Kurt R. Sjoberg, and Bureau auditors Ann Camp-

bell and Dore Tanner, after their demurrer to appellant's

complaint was sustained without leave to amend. Appel-

lant sued respondents for damages arising from the State

Auditor’s 1994 investigation and report of the Center for

Pre-hospital Research and Training (CPRT) at the Univer-

sity of California, San Francisco (UCSF), where appellant

worked.

*Pursuant to California Rules of Court, rules 976(b) and 976.1,

this opinion is certified for publication with the exception of

part II.B.

This appeal presents the first reported challenge to

the State Auditor’s conduct of an investigative audit

under the Reporting of Improper Governmental Activ-

ities Act (Gov. Code, § 8547, et seq.; hereafter the Report-

ing Act). In the published portion of this opinion, we

conclude that statements made in the CPRT audit report

were privileged under Civil Code section 47, subdivision

(b), and thus that appellant’s tort claims based on those

statements were properly dismissed. In the unpublished

portion of the opinion, we uphold the dismissal of appel-

lant’s “due process” claims. The judgment is affirmed.

I. BACKGROUND

A. The Statutory Scheme

The Reporting Act is a “whistleblower” law enacted

to encourage the disclosure of improper governmental

activities. (Gov. Code, § 8547.1.) An “improper govern-

mental activity” is broadly defined as any “that (1) is in

violation of any state or federal law or regulation, includ-

ing, but not limited to, corruption, malfeasance, bribery,

theft of government property, fraudulent claims, fraud,

coercion, conversion, malicious prosecution, misuse of

government property, or willful omission to perform

duty, or (2) is economically wasteful, or involves gross

misconduct, incompetency, or inefficiency.” (Gov. Code,

§ 8547.2, subd. (b).) The Reporting Act prohibits interfer-

ence with the right to disclose such activities, and retalia-

tion against those who exercise that right. (Gov. Code,

§ 8547.3, § 8547.8, et seq.)

The Reporting Act is administered by the State Audi-

tor, who heads the Bureau. (Gov. Code, § 8543.2, subd.

a eT EN

(a), § 8547.4.) “In order to be free of organizational

impairments to independence, the [B]ureau [is] indepen-

dent of the executive branch and legislative control.”

(Gov. Code, § 8543.) “Upon receiving specific information

that any employee or state agency has engaged in an

improper governmental activity, the State Auditor may

conduct an investigative audit of the matter.” (Gov. Code,

§ 8547.5.) The whistleblower’s identity cannot be dis-

closed without his or her permission except to a law

enforcement agency conducting a criminal investigation.

(Gov. Code, § 8547.5.) The State Auditor may request

assistance with an investigative audit from any state

department, agency or employee. (Gov. Code, § 8547.6.)

Information disclosed or produced by such a request

cannot be divulged without the State Auditor’s approval.

(Gov. Code, § 8547.6.)

Government Code section 8547.7 provides:

“(a) If the State Auditor determines that there is

reasonable cause to believe that an employee or state

agency has engaged in any improper governmental activ-

ity, he or she shall report the nature and details of the

activity to the head of the employing agency, or the

appropriate appointing authority. If appropriate, the State

Auditor shall report this information to the Attorney

General, the policy committees of the Senate and Assem-

bly having jurisdiction over the subject involved, and to

any other authority that the State Auditor determines

appropriate.

“(b) The State Auditor shall not have any enforce-

ment power. In any case in which the State Auditor

submits a report of alleged improper activity to the head

of the employing agency or appropriate appointing

authority, that individual shall report to the State Auditor

with respect to any action taken by the individual regard-

ing the activity, the first report being transmitted no later

than 30 days after the date of the State Auditor’s report

and monthly thereafter until final action has been taken.

“(c) Every investigative audit shall be kept confi-

dential, except that the State Auditor may issue any

report of an investigation that has been substantiated,

keeping confidential the identity of the individual or

individuals involved, or release any findings resulting

from an investigation conducted pursuant to this article

that is deemed necessary to serve the interests of the

state.

“(d) This section shall not limit any authority con-

ferred upon the Attorney General or any other depart-

ment or agency of government to investigate any matter.”

B. Appellant’s Case

In Braun v. Chronicle Publishing Co. (1997) 52

Cal.App.4th 1036, we addressed appellant's claims in this

case based on newspaper articles about investigations of

the CPRT and the underlying allegations. As we noted in

that opinion, appellant was the medical director of the

CPRT, an activity within the UCSF School of Medicine

which supported emergency medical services in the com-

munity. The State Auditor began an investigative audit of

the CPRT in early 1994, after allegations about the CPRT

were lodged with the Bureau pursuant to the Reporting

Act. In August 1994, a search warrant was obtained based

on the affidavit of respondent Tanner for the seizure of

CPRT computers and time records. That month, the exe-

cution of this warrant and the State Auditor’s investiga-

tion of the CPRT were reported in the newspaper. The

CPRT was closed and appellant lost her employment

there when the State Auditor’s investigative report on the

CPRT was made public in November of 1994.

The report found that appellant, who was identified

in the report as “a” or “the” “CPRT administrator” rather

than by name, had “grossly mismanaged” the CPRT. The

report accused appellant of numerous improprieties,

finding among other things that she had: conflicts of

interest relating to contracts between UCSF and the San

Francisco Fire Department, where she was also

employed; conspired to submit falsified payroll records;

participated in the use of a “secret, unauthorized” bank

account; falsified deposit records for student tuition fees;

directed improper fundraising; used CPRT funds for her

personal benefit and that of her family; used CPRT staff

to handle her personal travel, bookkeeping, housekeep-

ing, and child care arrangements; and misled the CPRT

advisory board of directors about a 1992 audit.

The 73-page report included a 2-page summary of the

“University Response” to the charges. This portion of the

report noted that UCSF disagreed with a number of the

State Auditor’s findings, including the finding that appel-

lant had a conflict of interest from her dual employment

with UCSF and the San Francisco Fire Department, and

the finding that there had been improper expenditures

from the CPRT’s bank account and petty cash fund. The

report stated that the State Auditor had reviewed the list

of errors and omissions UCSF identified in the report and

disagreed with UCSF’s objections.

The report was addressed to the Governor, the Presi-

dent pro Tempore of the Senate and the Speaker of the

Assembly, and copies of it were furnished to various

other officers and offices of the state government as well

as the “Capitol Press Corps.” The day after the report was

released, the San Francisco Chronicle newspaper pub-

lished a front-page article about it under the headline,

“State Auditors Blast Director of UCSF Center.”

Appellant’s third amended complaint included

detailed allegations contesting the charges in the report.

Appellant alleged among other things that the report

included “criminal” conflict of interest charges which the

Bureau knew were false. Appellant alleged that she had

no role in developing the improper payroll practices

identified in the report, that these practices were wide-

spread at UCSF, and that she was simply being made the

“scapegoat” for them. She alleged that statements were

included in the “vitriolic” report “merely to be inflamma-

tory,” and that the report’s accusation of her gross mis-

management was based on “purposefully false and

misleading” conclusions. She alleged that the Bureau con-

tacted “officials at UCSF, the Registry of Charitable

Trusts, the State Department of Justice, the IRS, the Fran-

chise Tax Board, the SF District Attorney’s office... and

the San Francisco Fire Department,” but that none of

these entities concurred with or acted on any of the

Bureau's findings against her.

The complaint set forth tort causes of action against

respondents for defamation, intentional infliction of emo-

tional distress, negligent infliction of emotional distress,

and negligence. The defamation cause of action identified

various false statements in the State Auditor’s report, and

alleged that the statements were made with knowledge of

their falsity and with implied malice. The causes of action

for negligence, and negligent and intentional infliction of

emotional distress alleged in general terms that respon-

dents should have known that their statements about

appellant were false, and that their conduct was extreme

and outrageous and intended to humiliate her. Appellant

sought compensatory and punitive damages for defama-

tion based on injury to reputation, loss of employment,

and anguish and humiliation.

The complaint also included a cause of action against

respondents for “violation of due process rights.” This

cause of action alleged that: appellant was not informed

of the charges against her during the CPRT audit; appel-

lant was refused access to the evidence against her in the

audit; respondents ignored evidence submitted on her

behalf during the audit; and respondents sought state-

ments under penalty of perjury from her and others

during the audit without affording them the assistance of

counsel. This cause of action also alleged that: (1) respon-

dents unlawfully disclosed confidential information

regarding the audit to members of the public in June of

1994; (2) respondents acted in excess of their jurisdiction

in accusing her of having a conflict of interest; and (3)

respondent Tanner made anti-Semitic remarks to intimi-

date and castigate her during the audit. The latter allega-

tions were that when Tanner learned that appellant's

family were Holocaust survivors, he told her that his

family had been SS officers in Germany, and likened her

alleged misdeeds at the CPRT to “Hitler” and the “Holo-

caust.”!

Respondents demurred on the ground that the com-

plaint failed to state a cause of action. (Code Civ. Proc.,

§ 430.10, subd. (e).) They demurred to all causes of action,

other than the one for “violation of due process,” on the

ground that the State Auditor’s report was privileged

under Civil Code section 47, subdivisions (a) (publication

in the discharge of official duty) and (b) (publication in

official proceeding authorized by law). Multiple addi-

tional grounds for the demurrer were advanced as to all

causes of action.

The trial court concluded that all proceedings and

reports of the State Auditor were absolutely privileged

under the Reporting Act and Civil Code section 47, sub-

divisions (a) and (b), and sustained the demurrer without

leave to amend.

II. DISCUSSION

A. Defamation and Other Tort Claims

In Braun v. Chronicle Publishing Co., supra, 52

Cal.App.4th at pp. 1043, 1048, we concluded that an

1 Appellant asks us to take judicial notice of evidence

developed in her case against other defendants. Respondents

dispute the facts for which this evidence is offered, and all of the

matters appear reasonably subject to dispute. Therefore, the

request for judicial notice is denied. (Evid.Code, § 452, subd.

(h).) The evidence does not add anything material to the

complaint for purposes of the ruling on the demurrer in any

event.

investigative audit by the State Auditor under the

Reporting Act was an “official proceeding authorized by

law” within the meaning of the anti-SLAPP statute (Code

Civ. Proc., § 425.16, subd. (e)). We likewise conclude here

that such an audit constitutes an “official proceeding

authorized by law” under Civil Code section 47, subdivi-

sion (b), which provides that “A privileged publication or

broadcast is one made: [{] . . . [1] (b) In any (1) legislative

proceeding, (2) judicial proceeding, [or] (3) in any other

official proceeding authorized by law. .. . ” Therefore, all

statements made in furtherance of a Reporting Act audit,

such as those in the search warrant affidavit and the State

Auditor’s report in this case are protected by the absolute

privilege under that statute. ,

The privilege issue in Chronicle Publishing was

whether newspaper accounts of the CPRT audit were

reports of a “public official proceeding” for purposes of

Civil Code section 47, subdivision (d)(1) (fair and true

report in public journal). We concluded that they were,

and in so doing we rejected appellant’s argument,

advanced again here, that the term “official proceeding”

in section 47, subdivision (b), does not “reach beyond

proceedings which resemble judicial and legislative pro-

ceedings.” (Braun v. Chronicle Publishing Co., supra, 52

Cal.App.4th at p. 1051, disagreeing with Fenelon v. Supe-

rior Court (1990) 223 Cal.App.3d 1476.) Where the same

words are repeated in a statute there is a presumption

that the same meaning is intended (Castro v. Sacramento

County Fire Protection Dist. (1996) 47 Cal.App.4th 927,

932), and we find no reason to ascribe different meanings

to the term “official proceeding” in Civil Code section 47,

subdivisions (b) and (d). Braun v. Chronicle Publishing Co.,

Al0

supra, 52 Cal.App.4th at p. 1051, reflects our belief that

the words at issue were used consistently, and thus that

interpretation of one of these subdivisions properly

informs interpretation of the other. Accordingly, our anal-

ysis in Chronicle Publishing is dispositive of the closely-

related privilege issue presented here.

Our holding that statements made in furtherance of

Reporting Act audits are absolutely privileged under

Civil Code section 47 is consistent with many other cases

which have reached the same conclusion with respect to

statements made in or about other types of governmental

investigations. (See Kemmerer v. County of Fresno (1988)

200 Cal.App.3d 1426, 1441 [civil service investigation];

O'Shea v. General Telephone Co. (1987) 193 Cal.App.3d

1040, 1047-1049 [CHP background employment investiga-

tion]; Dong v. Board of Trustees (1987) 191 Cal.App.3d 1572,

1594 [National Institutes of Health investigation]; Green v.

Cortez (1984) 151 Cal.App.3d 1068, 1073 [internal police

investigation]; King v. Borges (1972) 28 Cal.App.3d 27, 32

[Real Estate Commissioner investigation]; Crane v. The

Arizona Republic (9th Cir.1992) 972 F.2d 1511, 1517-1519

[investigation by congressional committee and Depart-

ment of Justice].) Among the decisions squarely on point

is Howard v. Oakland Tribune (1988) 199 Cal.App.3d 1124,

1128, where this court held that a Department of Educa-

tion investigation into an alleged misuse of public funds

was an “official proceeding” within the meaning of Civil

Code section 47, subdivision (d).

Appellant argues that Pettus v. Cole (1996) 49

Cal.App.4th 402, supports a contrary result, but that case

is inapposite. Pettus held that a company’s disability veri-

fication procedure was not a “judicial proceeding” under

All

Civil Code section 47, subdivision (b), and thus that the

report of a psychiatrist who evaluated an employee's

request for disability leave was not privileged under this

statute. (Id. at p. 437.) Here, unlike Pettus, the term “judi-

cial proceeding” is not at issue. Pettus is also distinguish-

able because “the only decision makers involved were a

private employer . . . and its employees and agents.”

(Ibid.) There was no governmental investigation in Pettus.

Our conclusion that the State Auditor’s report is

within the “official proceeding” privilege is also consis-

tent with many cases which have reasoned that “a com-

munication to an official administrative agency, which

communication is designed to prompt action by that

agency, is as much a part of the ‘official proceeding’ as a

communication made after the proceedings have com-

menced.” (King v. Borges, supra, 28 Cal.App.3d at p. 34;

see also Dove Audio, Inc. v. Rosenfeld, Meyer & Susman

(1996) 47 Cal.App.4th 777, 783; Passman v. Torkan (1995) 34

Cal.App.4th 607, 619; Hunsucker v. Sunnyvale Hilton Inn

(1994) 23 Cal.App.4th 1498, 1503-1504; Williams v. Taylor

(1982) 129 Cal.App.3d 745, 753; Imig v. Ferrar (1977) 70

Cal.App.3d 48, 55; Martin v. Kearney (1975) 51 Cal.App.3d

309, 311.)

The Reporting Act provides for the furnishing of

investigative audit reports to “official administrative

agencies” to “prompt action by those agencies” within

the meaning of these cases. The Reporting Act directs the

State Auditor, if he or she has reasonable cause to believe

that a state employee or agency has engaged in any

improper governmental activity, to report the nature and

details of the activity to the head of the employing

agency, the appropriate appointing authority, or “any

Al2

other authority that the State Auditor determines appro-

priate.” (Gov. Code, § 8547.7, subd. (a).) The head of the

employing agency or appropriate appointing authority

must then report monthly to the State Auditor until “final

action has been taken” on the report. (Gov. Code,

§ 8547.7, subd. (b).)

One policy underlying the absolute privilege for

statements made in governmental investigations and

reports of misconduct “is to assure utmost freedom of

communication between citizens and public authorities

whose responsibility is to investigate and remedy wrong-

doing.” (Imig v. Ferrar, supra, 70 Cal.App.3d at p. 55; see

also O'Shea v. General Telephone Co., supra, 193 Cal.App.3d

at p. 1048.) This consideration is especially pertinent here

because the express purpose of the Reporting Act is to

foster such communications. (Gov. Code, § 8547.1.) the

reporting act seeks to encourage reports of improper

governmental activities by keeping whistleblowers’ iden-

tities confidential and protecting them from reprisals.

(Gov. Code, § 8547.5, § 8547.8, et seq.)

If respondents’ statements in an investigative audit

were not absolutely privileged, then whistleblowers’

reports of improper activities would also lack that protec-

tion, and the resulting exposure would undermine the

effectiveness of the Reporting Act. As other courts have

stated, “there must be an open channel of communication

by which citizens can call [the investigator’s] attention to

suspected wrongdoing. That channel would quickly close

if its use subjected the user to a risk of liability for libel. A

qualified privilege is inadequate protection under the

circumstances. . . . [{] The importance of providing to

citizens free and open access to governmental agencies

Al3

for the reporting of suspected illegal activity outweighs

the occasional harm that might befall a defamed individ-

ual. Thus the absolute privilege is essential.” (King v.

Borges, supra, 28 Cal.App.3d at p. 34; see also Williams v.

Taylor, supra, 129 Cal.App.3d at pp. 753-754; Imig v. Ferrar,

supra, 70 Cal.App.3d at pp. 55-56.)

Appellant contends that, even if Reporting Act audits

are “official proceedings” under Civil Code section 47,

subdivision (b), the investigative audit and report in this

case were not “authorized by law” as required by that

statute. Her arguments in this regard are that respon-

dents acted in excess of their jurisdiction in various

respects. We will assume without deciding that acts in

excess of jurisdiction are outside the privilege for “autho-

rized” official proceedings. There were no such acts here

in any event.

Appellant contends that the CPRT audit was

unauthorized because the Reporting Act is unconstitu-

tional insofar as it provides for audits of the University of

California.2 This argument is based on the University’s

status as “a constitutionally autonomous entity generally

exempt from state regulation.” (Regents of University of

California v. Aubry (1996) 42 Cal.App.4th 579, 582.) How-

ever, the University is subject among other things “to the

specific provisions set forth in article IX, section 9.” (San

Francisco Labor Council v. Regents of University of California

2 The University itself evidently does not take this position.

The request for the search warrant in this case included a letter

from the University’s Deputy General Counsel to respondent

Campbell stating that “the University has cooperated with the

State Auditor and intends to continue to do so.”

Al4

(1980) 26 Cal.3d 785, 789.) California Constitution, article

IX, section 9, subdivision (a) permits “such legislative

control as may be necessary to insure the security of [the

University’s] funds.” We conclude that this provision

authorizes Reporting Act investigations of improper gov-

ernmental activities at the University.

Appellant argues that the Reporting Act does not

permit release of investigative audits to the public, or,

alternatively, that it does not permit audits of the Univer-

sity to be made public. However, the Reporting Act pro-

vides that the term ” ‘State agency’ includes the

University of California for purposes of Sections 8547.5 to

8547.7, inclusive.” (Gov. Code, § 8547.2.) Government

Code section 8547.5 provides for the conduct of investiga-

tive audits, and Government Code section 8547.7, subdi-

visions (a) and (c) provide for the furnishing of audit

reports to appropriate agencies, as well as the

“issu[ance]” of reports that have been “substantiated,”

and the release of investigative “findings” if “deemed

necessary to serve the interests of the state.” Thus, the

Reporting Act does not distinguish University audits

from other audits for purposes of their issuance and

release. The only question is whether the State Auditor’s

discretion to “issue” reports and “release” findings under

Government Code section 8547, subdivision (c), extends

to making them public.

Although the statute does not expressly refer to the

release of investigative audit reports and findings “to the

public” (compare Gov. Code, § 8546.1 [reports of agency

financial and performance audits “shall be made avail-

able to the public”]), the State Auditor submits that this is

the statute’s intent. Consistent with that construction, the

Al5

report in this case was released to the press, and it

includes a note on the cost of copies and how they may

be ordered.

“An administrative application of the language of an

act is entitled to respect by the courts, and unless clearly

erroneous is_a significant factor to be considered in ascer-

taining the meaning of a statute.” (Mudd v. McColgan

(1947) 30 Cal.2d 463, 470; see also Nipper v. California

Auto. Assigned Risk Plan (1977) 19 Cal.3d 35, 45; Santillano

v. State Personnel Bd. (1981) 117 Cal.App.3d 620, 625.) The

State Auditor’s interpretation of Government Code sec-

tion 8547.7 does not appear “clearly erroneous”; it is, to

the contrary, supported by the language of the statute.

Government Code section 8547.7, subdivisions (a)

and (b) provide for reports to agencies with the power to

act on the State Auditor’s findings, and for follow up

reports by those agencies. Since those subdivisions cover

the subject of enforcement in light of the State Auditor’s

findings, subdivision (c) must serve some other purpose.

This inference is strengthened by subdivision (c)’s stipu-

lation that the identity of the individuals involved in the

reports thereunder are to be kept confidential. No such

confidentiality could be maintained in reports for possi-

ble enforcement action because the responsible agency

would need to know the identities of the individuals

involved. It thus appears that subdivision (c) has a pur-

pose distinct from those of subdivisions (a) and (b), and

we must construe the provision so as to effectuate that

separate purpose (Garcia v. McCutchen (1997) 16 Cal.4th

469, 476).

Al6

The purpose of Government Code section 8547.7 sub-

division (c) is evident from the structure of the statute. If,

as has been stated, subdivision (c) reports and findings

are not aimed at remedial action then their purpose must

be merely informational, and if, as has been indicated,

government agencies are informed pursuant to subdivi-

sions (a) and (b), then it must be the public who is being

informed under subdivision (c). No audiences for audit

reports are apparent other than the agencies which are

empowered to act on them and the citizens who have

paid for them. Accordingly, we concur in the State Audi-

tor’s reading of Government Code section 8547.7, subdi-

vision (c), and hold that it provides for the release of

reports and findings to the public.

Appellant thinks it “absurd to imagine,” in light of

what she calls “the extremely limited scope of disclosure

permitted under [Government Code section 8547.7] as a

whole,” that “the Legislature intended to authorize the

State Auditor to release any or all of this same confiden-

tial investigative audit material to anyone and everyone

in the whole wide world.” Statutes should be interpreted,

of course, to avoid absurd and inconsistent results. (Fre-

mont Union High Sch. Dist. v. Santa Clara County Bd. of

Education (1991) 235 Cal.App.3d 1182, 1186.) However,

public disclosure of reports under Government Code sec-

tion 8547.7, subdivision (c) does not conflict with the

balance of the Reporting Act. Such disclosure may further

the law’s purposes by serving as a deterrent to miscon-

duct and adding to the pressure for remedial action. (See

generally, Gellhorn, Adverse Publicity By Administrative

Agencies (1973) 86 Harv.L.Rev. 1380, 1382-1383.) Thus, our

interpretation of the statute is consistent with its aims as

A17

well as its language. The State Auditor did not act in

excess of jurisdiction in making the CPRT audit report

public.

Appellant contends that the State Auditor exceeded

his authority in charging her with a conflict of interest.

She notes that, shortly after the CPRT audit was com-

pleted, the Fair Political Practices Commission cleared

her of any conflict of interest under Government Code

section 82030, and she argues that this Commission has

exclusive jurisdiction over alleged conflicts of interest.

However, the audit report alleged that the CPRT adminis-

trator had a conflict of interest under Government Code

section 1090 (employees’ financial interest in contracts

made in their official capacity), not a conflict of interest

under the Political Reform Act of 1974 (Gov. Code,

§ 87100 et seq.). The violation of any conflict of interest

statute is in any event within the broad definition of

“improper governmental activities” which may be inves-

tigated by the State Auditor under the Reporting Act.

(Gov. Code, § 8547.3, subd. (b), § 8547.5.)

Appellant submits that the Bureau and the State

Auditor function under the Reporting Act like a perma-

nent grand jury over state agencies, and she reasons that,

because the Legislature has not made grand jury reports

fully privileged (Pen.Code, § 930 [no privilege for com-

ments about unindicted individuals]), it could not have

intended for Reporting Act reports to be privileged

either. However, the Legislature has not enacted any law

like Penal Code section 930 for Reporting Act reports, or

otherwise excepted them from the privilege of Civil Code

section 47, subdivision (b)(3) (compare Begier v. Strom

(1996) 46 Cal.App.4th 877, 885 [exception for knowingly

Al18

false reports of child abuse]). Consequently, we have no

basis to infer that any such exception is intended.

Because the absolute privilege of Civil Code section

47, subdivision (b)(3) covers all of appellant’s tort claims

(Rubin v. Green (1993) 4 Cal.4th 1187, 1194), the demurrer

to those causes of action was correctly sustained without

leave to amend.

B. “Due Process” Claims

The complaint alleges that appellant was denied due

process during the CPRT audit because she was not

accorded the rights: to notice of the charges against her;

to examine the evidence against her; to present evidence

in her defense; and to the assistance of counsel.4 Appel-

lant’s briefs refer to other elements of due process, such

as rights to confrontation and cross-examination, as if she

were alleging their deprivation as well. In addition to

these procedural due process claims, the cause of action

for violation of due process alleges that, during the

course of the CPRT audit, respondents disclosed informa-

tion about the audit in violation of the confidentiality

3 In view of this conclusion, we need not address whether

any of the tort claims is barred by any other privilege or

immunity.

4 The record includes a 23-page letter written by

appellant’s counsel in July 1994 during the course of the CPRT

audit responding to questions and issues raised by respondents

Campbell and Tanner. However, for purposes of the demurrer

we must assume the truth of the allegations that appellant had

neither notice of the charges involved in the audit nor an

opportunity to respond to them. (Moore v. Regents of University of

California (1990) 51 Cal.3d 120, 125.)

Al9

provisions of the Reporting Act, and respondent Tanner

made anti-Semitic remarks to appellant. All of these alle-

gations are apparently based on the due process clauses

of both the federal and state constitutions. (U.S. Const.,

5th & 14th Amends.; Cal. Const., art. 1, § 7, subd. (a).)

Respondents demurred to these allegations on the

ground, among others, that they failed to state a cause of

action. (Code Civ. Proc., § 430.10, subd. (e).)

It appears that damages are the only remedy sought

for the alleged due process violations. The complaint

prays for reinstatement of appellant’s employment, and

for a permanent injunction against the defendants’

“unlawful practices.” However, these claims for equitable

relief are evidently directed against defendants other

than respondents. There is no argument or indication in

the record that respondents have the power to restore

appellant’s employment. Appellant alleges that none of

the agencies to which the audit’s findings were referred

took any action against her. Since the audit process,

including follow-up by other agencies, has been com-

pleted, there are no continuing activities by respondents

to enjoin.

Thus, the threshold question is whether the com-

plaint states a cause of action for the recovery of damages

on the constitutional claims. There is no cause of action

for damages for violation of the right to due process

under California Constitution, article I, section 7, subdivi-

sion (a). (Bradley v. Medical Board (1997) 56 Cal.App.4th

445, 462-463; see also Bonner v. City of Santa Ana (1996) 45

Cal.App.4th 1465, 1473-1476.) This is dispositive of the

state constitutional claims.

A20

Actions under 42 U.S.C. section 1983 (hereafter

§ 1983) are the ordinary vehicle for recovery of damages

in state court for federal constitutional violations. (See,

e.g., Bradley v. Medical Board, supra, 56 Cal.App.4th at pp.

453-454; Steinglass, Section 1983 Litigation in State Courts

(1997) §§ 2.5, 2.7.) Apart from section 1983, there is

authority for recovery of damages for federal constitu-

tional violations in a “Bivens-type action.” (Rutherford v.

State of California (1987) 188 Cal.App.3d 1267, 1288; citing

Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S.

388, 390-397 [implied right of action for damages under

U.S. Constitution]; see also Stalnaker v. Boeing Co. (1986)

186 Cal.App.3d 1291, 1303-1304.) However, appellant’s

briefs indicate that she is not pursuing a “Bivens-type”

claim. Also, the complaint seeks attorney’s fees, which

are available only in section 1983 cases. (Steinglass, supra,

§ 5.2(b) [listing advantages of § 1983 over Bivens actions].)

Thus, although the complaint does not refer to section

1983, we infer that appellant is suing under section 1983

insofar as she seeks damages for violations of the federal

constitution. (See Best v. California Apprenticeship Council

(1987) 193 Cal.App.3d 1448, 1463.)

The Bureau, as an arm of the state, is not liable for

damages under section 1983. (Pitts v. County of Kern

(1998) 17 Cal.4th 340, 348; see Sable Communications of

California, Inc. v. Pacific Tel & Tel. Co. (9th Cir. 1989) 890

F.2d 184, 191.) This is dispositive of appellant’s federal

constitutional claims against the Bureau.

The other respondents’ liability for damages depends

in the first instance on whether they are being sued in

their official or individual capacities. (Pitts v. County of

Kern, supra, 17 Cai.4th at p. 348 [state officials acting in

A21

their official capacities are not subject to damages under

§ 1983]; Wells v. Brown (6th Cir. 1989) 891 F.2d 591, 592.)

The complaint does not specify the capacities in which

these respondents are sued. It merely alleges that the

individual respondents are residents of the state, and that

they acted “at least in part” in the course and scope of

their employment with the Bureau.

Failure to specifically plead the defendant’s capacity

is grounds for dismissal of a section 1983 suit. (Wells v.

Brown, supra, 891 F.2d at pp. 591-592.) although federal

courts are split on the need for specific pleading on this

point (Hafer v. Melo (1991) 502 U.S. 21, 24, fn.), the federal

cases which have required specificity (e.g. Wells v. Brown,

supra, at pp. 591-592; Egerdahl v. Hibbing Community Col-

lege (8th Cir. 1995) 72 F.3d 615, 619-620; Pelfrey v. Chambers

(6th Cir. 1995) 43 F.3d 1034, 1037-1038) are the most

consistent with the California rule that statutory causes of

action, including tort claims against the government,

must be specifically pleaded (Lopez v. Southern Cal. Rapid

Transit Dist. (1985) 40 Cal.3d 780, 795; 4 Witkin, Cal.

Procedure (4th Ed. 1997) Pleading, § 579, pp. 675-676; see

also Imbler v. Pachtman (1976) 424 U.S. 409, 417 [describ-

ing § 1983 claims as a “species of tort liability”]). There-

fore, the federal constitutional claims for damages against

the individual respondents were subject to demurrer for

failure to identify the capacities in which those respon-

dents were sued. (Code Civ. Proc., § 430.10.)5

5 In light of this conclusion, we need not determine

whether the trial-type procedures appellant advocates are

required in Reporting Act audits, or whether her other “due

process” claims rise to the level of constitutional violations.

A22

Although the demurrer to the due process claims was

not sustained below on the grounds we discuss, our

review extends to results not reasons. (9 Witkin, Ca).

Procedure, supra, Appeal, § 340, pp. 382-383.) Leave to

amend is, in general, liberally granted (e.g., Saunders v.

Cariss (1990) 224 Cal.App.3d 905, 911), and it can be

shown for the first time on appeal how a complaint can

be amended to state a cause of action (William S. Hart

Union High School Dist. v. Regional Planning Com. (1991)

226 Cal.App.3d 1612, 1621). However, it is the plaintiff’s

burden to make this showing (Hendy v. Losse (1991) 54

Cal.3d 723, 742), and appellant’s briefs ignore the thresh-

old problems we have identified with respect to her due

process claims. Thus, we find no cause to reverse.

Ill. CONCLUSION

The judgment of dismissal is affirmed with costs to

respondents.

Hanlon, P.J.

We concur.

Poche, J.

Reardon, J.

(Brauns v. Bureau of State Audits et al., A075423)

APPENDIX B

First Appellate District, Division Four, No. A075423

S075603

IN THE SUPREME COURT OF CALIFORNIA

ODELIA S. BRAUN, Appellant

V. (Filed Mar. 9, 1999)

BUREAU OF STATE AUDITS Et AL., Respondents

Appellant’s petition for review DENIED.

GEORGE

Chief Justice

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