Opinion
B314774
04-29-2024
JOHN DOE, Petitioner and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA, Respondent.
Hathaway Parker, Mark M. Hathaway, and Jenna E. Parker for Petitioner and Appellant. Young, Zinn, Pazzani & Sandhu; Pazzani & Sandhu and Karen J. Pazzani for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BS173043 Laura A. Seigle, Judge. Reversed and remanded with directions.
Hathaway Parker, Mark M. Hathaway, and Jenna E. Parker for Petitioner and Appellant.
Young, Zinn, Pazzani & Sandhu; Pazzani & Sandhu and Karen J. Pazzani for Respondent.
CHANEY, J.
Respondent University of Southern California charged appellant "John Doe" with violating USC's policy on sexual misconduct by (1) having sex with "Jane Roe" when she was intoxicated; and (2) sending a Snapchat message to Roe's friend, asking the friend to ensure Roe spoke with appellant's attorney, when an "interim measure" required him not to communicate with Roe in any way, including through third parties. After a September 2019 administrative "live hearing," appellant was found not responsible for sexual misconduct, but responsible for violating the interim measure. In March 2020, USC sanctioned appellant with a "transcript hold" that expired in May 2021. In August 2020, appellant petitioned the trial court for a writ of administrative mandate ordering USC to set aside its finding of responsibility and resulting sanction. The trial court denied the petition, and appellant appealed.
While the record contains no explicit definition of "transcript hold," appellant described the sanction as the withholding of "his academic transcript showing the course work he completed, his grades, units, program of study, enrollment history, and the degree he received." USC agreed it was a "hold on Petitioner's ability to obtain his transcript."
On appeal, appellant contends the trial court erred because the live hearing was unfair in that USC did not comply with its own rules, the finding that appellant violated the interim measure was not supported by substantial evidence, and the imposed sanction was an abuse of discretion. USC disagrees with appellant's contentions and additionally argues that: (1) this appeal is moot because the transcript hold has expired; and (2) appellant has forfeited some of his arguments by failing to exhaust his administrative remedies. Appellant counters that the appeal is not moot because, apart from the expired sanction, there is a notation in his record that he violated university policy, the disclosure of which could be prejudicial. He also acknowledges his failure to raise certain issues in the administrative proceedings but claims it would have been impossible for him to do so.
We conclude that the appeal is not moot and that USC failed to follow its policy by permitting the hearing officer to consider evidence outside the record. Had the hearing officer considered only evidence properly in the record, substantial evidence would not have supported a finding that appellant violated the Avoidance of Contact order. We therefore reverse.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our summary to the facts and procedural history relevant to the issues appellant raises on appeal.
A. USC's Sexual Misconduct Policy
USC's Student Misconduct: Sexual, Interpersonal and Protected Class Misconduct Policy prohibits non-consensual sexual contact and explains that "[c]onsent cannot be the product of incapacitation" and that "a person may be incapacitated as a result of consumption of alcohol or drugs." It requires that, after an alleged violation, the accused be provided with "[w]ritten notice of the alleged policy violation including the specific acts, the date/period of time, and location." After a report of prohibited conduct is made, USC may impose "[i]nterim measures," such as "no contact orders." The policy provides that "[f]ailure to comply with interim measures is a separate and independent violation. A Respondent may be found in violation for failure to comply with an interim measure without being found responsible for the underlying report of prohibited conduct." "Respondents are presumed not responsible. This presumption is overcome only when a preponderance of the evidence establishes that the Respondent committed the prohibited conduct charged."
"For students facing severe disciplinary sanctions and where the credibility of witnesses is central to the adjudication of the allegations, a live hearing [will be held] in which the parties may indirectly cross-examine each other and those witnesses before an adjudicator who has the ability to assess credibility, find facts, and determine if the policy has been violated. (Under this policy, 'severe disciplinary sanctions' is defined as expulsion or actual suspension)." This indirect cross-examination occurs through the hearing officer asking questions the parties submitted before the hearing. "Responses provided [to the questions posed at the live hearing] are considered evidence and may be used in the findings of fact and policy violation."
Prior to the hearing, both the reporting and responding parties are given an opportunity to review the evidence collected in an "Evidence Review." During Evidence Review, "Parties are not provided copies or allowed to take photographs. Parties may take notes. Parties are permitted to review the material for as much time as requested."
After the hearing, the hearing officer prepares a report that "presents and analyzes the information collected during the investigation and presented at the hearing and mak[es] findings of fact and policy violation." In preparing the report, the hearing officer "will independently review all evidence collected and presented at the Live Hearing, assess[] credibility, and determine what information is relevant and material to the incident." "Information that is excluded from [evidence] review will not be considered in making findings of fact or determining responsibility."
If the charged party is found responsible for a policy violation, the report is sent to a Misconduct Sanctioning Panel to determine an appropriate sanction. The charged party may appeal the finding of responsibility and/or the imposed sanction to an Appellate Panel, whose decision is reviewed by the Vice President of Student Affairs. The Vice President of Student Affairs can affirm or modify the Appellate Panel's decision or remand the case for further proceedings.
B. Appellant Challenges USC's Initial Findings and Sanctions
In April 2018, appellant petitioned for a writ of administrative mandate, asking the trial court to order USC to set aside an "improper expulsion and interim suspension" based upon an allegedly unfair and improper hearing that USC had conducted. In June 2018, appellant filed a first amended petition setting forth more detail, describing how he and Jane Roe had met and engaged in sexual intercourse in April 2017, how appellant was arrested and charged with raping an intoxicated person, how these charges were dismissed at a preliminary hearing, and how USC conducted its own investigation and ultimately found appellant responsible for nonconsensual sexual activity, resulting in his expulsion in May 2018.
Appellant's petition was set to be heard on December 19, 2018. On December 12, 2018, USC wrote a letter to appellant, stating that, although its previous investigation was "fair and conducted in compliance with state and federal laws, . . . in light of recent case law, we have decided to reopen the investigation into the allegations described in the enclosed April 14, 2017 and October 12, 2017 letters to you. As a result, the expulsion decision in this matter has been withdrawn." The April 14, 2017 letter alleged appellant violated the University Student Conduct Code through "Non-consensual penetration of [Jane Roe]'s vagina with your penis on April 1, 2017, in Fluor Tower located in Los Angeles, CA." The October 12, 2017 letter alleged appellant violated "an interim measure" through "Violation of the Avoidance of Contact directive issued on April 14, 2017, by attempting to communicate with [Jane Roe] through a third party by sending a Snapchat message to [K.N.] on October 3, 2017." On December 18, 2018, USC filed an ex parte application to stay the court proceedings, arguing that, because USC had withdrawn the expulsion order and reopened the investigation, "the issues raised via the Amended Petition for Writ of Mandamus . . . are no longer ripe for judicial review." USC asked the court to "stay this matter pending the outcome of USC's reopened administrative process." The court granted the application.
C. USC Schedules a Live Hearing
In or around May or June 2019, appellant received his diploma from USC. But in July 2019, USC sent him an e-mail, detailing multiple efforts it had made to contact him in previous months "in an effort to begin planning [his] live hearing," and informing him that a live hearing had been scheduled for September 16-18, 2019.
1. Documentary Evidence
In an August 2019 status report filed with the court, appellant claimed he had been limited to an in-person or electronic "Evidence Review," and complained that USC refused to provide him with a copy of the evidence.
The administrative record lodged on appeal contains a "Table of Contents for Evidence Shared in [appellant's] Case," and lists 112 items. Item 96 was described as "Snapchat message from [appellant] to KN on October 3, 2017." The message stated: "She basically hung up on my lawyer [¶] Can you pls make sure they talk? [¶] She has the power to throw this case out! [¶] She needs to do the right thing [¶] She won't get into any trouble if she admits the truth. I can promise you that. [¶] They are investigating me, not her. [¶] I even clarified this with the title IX coordinator, Gretchen, so I'm highly confident."
Item 99 was an e-mail from appellant to investigator AlleeMoawad, contending that his attorney, Harland Braun, was a witness "because I specifically contacted KN to urge [Roe] to tell Mr. Braun the truth at Mr. Braun's request." He continued, "Mr. Braun was and is my attorney in the criminal matter and he had a right to interview [Roe]. The only way for Mr. Braun to contact [Roe] was by me sending a message through KN."
Braun was not a witness at the live hearing and, as discussed below, while appellant attended the live hearing, he provided no substantive testimony about this or any other matter.
The Avoidance of Contact letter itself was not included in Evidence Review.
2. The Live Hearing
The live hearing began on September 16, 2019, and concluded two days later. At the start of the hearing, appellant informed the hearing officer that, "[o]n advice of counsel, I'm not able to respond to questions," but indicated he had a statement he wanted to read. The hearing officer twice confirmed with appellant that he did not intend to answer questions even if his refusal could affect the hearing officer's final decision. The hearing officer then made preliminary remarks, including informing the participants that he had "received a very extensive file," that he had "reviewed documentary evidence that's in the file," and that the participants were invited to "make any reference [they wished] to [those] documents."
After his preliminary remarks, the hearing officer began questioning witnesses. No opening statements were made, there was no presentation of documentary evidence, and the only substantive questions asked of the witnesses were posed by the hearing officer. In all, the hearing officer questioned nine witnesses, including Roe. After each witness testified, the hearing officer asked appellant if he had any questions; appellant's consistent response was that he had none. Roe had prepared five questions for appellant, but to each question posed, appellant answered that, on the advice of his counsel, he was unable to respond.
As part of his questioning of Roe, the hearing officer asked whether appellant or someone on his behalf ever spoke to any of her friends about what had happened after charges were filed. Roe answered: "Yes. I know that his lawyer tried to call KN a lot. And he called me as well, and he spoke to me. And [appellant] didn't call me or talk to me. His lawyer did. And he wanted me to -- his sister spoke to my sister and -- yeah. But I didn't -- I didn't speak to him directly. He spoke to KN." The hearing officer followed up with: "You said he spoke to you as well?" Roe responded: "The only time we spoke was right when I left the hospital and I messaged him, asking him where my phone was and my bag was." After the hearing officer finished questioning Roe, he confirmed with appellant that appellant had not prepared any questions for Roe and had no questions for her.
After all the witnesses testified, both appellant and Roe gave short closing statements. Appellant's closing statement consisted of an objection to the timing of the proceeding and a request that it be continued; the hearing officer denied the request. Roe used her closing statement to explain that she did not wish and had never wished to "press charges," and that she believed there was no misconduct toward her.
3. The Hearing Officer's Report
After the hearing concluded, the hearing officer issued an 11-page report. It stated that he had reviewed 114 pieces of evidence collected during the investigation. The report continued that the evidence was "known as the Evidence Review Packet and was viewed by Subject Party and Respondent on OneHub, a secure document sharing site, in August and September 2019."
In supplemental briefing, both parties agreed the record lacked an explanation for why the hearing officer stated he had reviewed 114 pieces of evidence when the table of contents for Evidence Review listed 112 items.
After summarizing the allegations and his factual findings, the hearing officer concluded that a preponderance of the evidence did not establish that appellant had sex with Roe without her consent, but a preponderance of the evidence did establish that appellant "violated the Avoidance of Contact directive issued on April 14, 2017, by attempting to communicate with the Subject Party through a third-party by sending a Snapchat message to KN on October 3, 2017." Therefore, the hearing officer found that appellant did, on one occasion, violate the USC Policy and Procedures on Student Sexual, Interpersonal and Protected Class Misconduct.
4. Appeal
On November 26, 2019, USC's Title IX Office informed appellant that the results of the investigation would be released the next day. A week later, appellant was informed that USC's Misconduct Sanctioning Panel had reviewed the hearing officer's findings and found that his contact with K.N. "was on the 'extreme end' of these types of violations." The Panel found that appellant's "reference to the lawyer [in his communication with K.N.] was . . . intimidating and threatening" that his communication with K.N. "directly implied that the Reporting Party was not telling the truth and was 'in the wrong,'" and that "the communication was a 'substantial violation of the review process and a clear attempt to influence the outcome of the case' and further showed 'disrespect for the integrity of the process.'" Based on these findings, the Panel imposed the following sanctions: "permanent exclusion from USC property and reenrollment; rescission of USC email and alumni status; transcript hold until September of 2021." (Emphasis in original.)
Appellant appealed USC's decision. After complaining that his lack of the "record of what happened at the live hearing," deprived him of a "meaningful opportunity to appeal what happened at the live hearing," appellant argued that the imposed sanctions were grossly disproportionate to the violation found, and that he should not be faulted for sending the Snapchat message to K.N. because he did so based on the advice of his criminal defense attorney.
In July 2020, USC informed the court that, in March 2020, USC "reached a final decision finding Petitioner responsible for violating an avoidance of contact order directing him not to contact Jane Roe directly or through a third-party" and imposing a sanction of "a transcript hold through May 14, 2021." After a status conference in late July, the court ordered appellant to file an amended petition within ten days.
D. Appellant Files the Operative Petition Challenging USC's New Finding and Sanction
In August 2020, appellant filed his second amended petition for a writ of administrative mandate, asking the trial court to order USC to set aside its finding that he violated the Avoidance of Contact order and the resulting sanction. He argued that "USC failed to grant Petitioner a fair hearing, failed to proceed in the manner required by law, and committed a prejudicial abuse of discretion in that Respondent's decision is not supported by the findings, and the findings are not supported by the evidence."
In February 2021, USC filed a motion to "correct" the administrative record, claiming it had "inadvertently omitted an avoidance of contact order issued to Petitioner on April 14, 2017 from the administrative record that was produced to Petitioner's counsel on September 24, 2020." Accompanying the motion was a declaration from USC's "Interim Assistant Director of the Title IX Office," averring that she had sent a letter to the hearing officer on or about August 15, 2019. This letter stated that among the materials sent to the hearing officer were: "the two (2) Avoidance of Contact directives the Respondent received." Attached to the declaration were the April 14, 2017 letter directing appellant to avoid contact with Roe, and a February 17, 2018 letter directing appellant to avoid contact with a certain witness.
In April 2021, the court granted USC's motion and denied appellant's petition, concluding that substantial evidence supported the finding that he violated the Avoidance of Contact order and that the imposed sanction was not an abuse of discretion. Judgment in USC's favor was entered in June 2021 and appellant timely appealed.
DISCUSSION
A. This Appeal Is Not Moot
USC contends that the expiration of the 14-month transcript hold moots this appeal because we can grant appellant no effective relief. (See, e.g. Shapell Socal Rental Properties, LLC v. Chico's FAS, Inc. (2022) 85 Cal.App.5th 198, 209 ["A case is moot and will be dismissed when the appellate court cannot grant the appellant any effective relief"].) Appellant counters that while the transcript hold has expired, "[t]here is a permanent notation in Petitioner's record that he violated University policy," and even if it were against USC policy to disclose this fact, appellant himself could be forced to, potentially resulting in adverse consequences. The appellate record does not disclose what notations may appear in appellant's collegiate record regarding this finding and sanction. In supplemental briefing, USC explained that while there was no notation of its finding in appellant's transcript, USC was required by federal law to keep a record of its findings for seven years, after which the records would be deleted. As those seven years have yet to elapse, and because appellant may be forced to self-disclose the finding on a future application or interview even after the seven years do elapse, we conclude the appeal is not moot.
B. Standard of Review
" 'The remedy of administrative mandamus . . . applies to private organizations that provide for a formal evidentiary hearing.'" (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 237, fn. 9.) In cases that do not" 'involv[e] a fundamental vested right,'" we review the administrative decision rather than the trial court's decision," 'applying the same standard of review applicable in the trial court.'" (Id. at p. 239.) "We review the fairness of the proceedings de novo, and the substantive decision for substantial evidence." (Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1065.) "California cases reviewing colleges' disciplinary decisions concerning student sexual misconduct have repeatedly applied the substantial evidence standard because the decisions there 'do not" 'involv[e] a fundamental vested right.'" '" (Doe v. Occidental College (2019) 37 Cal.App.5th 1003, 1018.)
C. USC Violated Its Policy
Appellant contends the live hearing was unfair because, among other things, "[t]he Administrative Record does not reflect that USC presented any evidence of the Avoidance of Contact directive during the three-day hearing" and that "USC apparently attempted to remedy its omission by providing the evidence to the hearing officer after the hearing." He additionally contends USC "did not follow its own new policies and procedures" and that "USC's findings are not supported by substantial evidence." While we conclude nothing in the record demonstrates that evidence was provided to the hearing officer after the hearing, we also conclude that USC failed to follow its own policy by permitting the hearing officer to consider a document not included in Evidence Review and, had USC followed its policy, substantial evidence would not have supported its findings.
1. Nothing Demonstrates Evidence Was Provided to the Hearing Officer After the Hearing
In supplemental briefing, both parties agree nothing in the administrative record explains how the 112 items in Evidence Review became 114 items. We think the most reasonable explanation is contained in the declaration accompanying USC's motion to "correct" the administrative record. In that declaration, the interim assistant director of USC's Title IX office averred that she had sent a letter to the hearing officer on or about August 15, 2019-one month before the live hearing. The August 15, 2019 letter stated that among the materials sent to the hearing officer were "the two (2) Avoidance of Contact directives the Respondent received." Also attached to the declaration were the April 14, 2017 letter directing appellant to avoid contact with Roe, and a February 17, 2018 letter directing appellant to avoid contact with a certain witness. Thus, assuming as appellant does that the missing two pieces of evidence are the Avoidance of Contact orders, the record does not support appellant's claim that these were presented to the hearing officer after the hearing.
2. The Hearing Officer Should Not Have Considered the Avoidance of Contact Letter
USC's policy provides that "[i]nformation that is excluded from [evidence] review will not be considered in making findings of fact or determining responsibility." All parties agree that the April 14, 2017 Avoidance of Contact letter was not part of Evidence Review. Thus, the hearing officer should not have considered the letter, and USC violated its own policy by sending that letter to the hearing officer for his consideration when it was not included in Evidence Review.
In supplemental briefing, USC contends the Avoidance of Contact letter does not constitute "evidence" because "it is not itself a fact or piece of information that proves whether a violation occurred." We disagree. Nothing in USC's sexual misconduct policy prohibited appellant's contact with Roe, through a third party or otherwise. Such conduct became "prohibited" only when USC issued an interim measure prohibiting the conduct. The letter is evidence that such an interim measure was issued and sent to appellant; it should have been included in Evidence Review.
USC also argues that the omission of the Avoidance of Contact letter from Evidence Review constitutes harmless error because appellant "had notice that USC was considering an allegation that he violated the avoidance of contact letter," "had the avoidance of contact letter in his possession," "and was able to review and respond to all the evidence that the Hearing Officer considered to determine that he violated the avoidance of contact letter." Again, we disagree.
USC's policy states that "Respondents are presumed not responsible. This presumption is overcome only when a preponderance of the evidence establishes that the Respondent committed the prohibited conduct charged." Thus, it was USC's burden to prove that appellant's conduct was "prohibited." USC's bar of the hearing officer's consideration of any evidence excluded from Evidence Review-such as the Avoidance of Contact letter- created a fatal defect in USC's ability to prove that appellant's conduct was prohibited. Permitting the hearing officer to consider evidence outside the record, in violation of its own policy, self-evidently prejudiced appellant because, without such evidence, USC could not have proven appellant's responsibility.
Indeed, were we to hold otherwise, nothing would prevent USC from omitting from Evidence Review every piece of evidence previously given to a party, or already in that party's possession.
3. Substantial Evidence Does Not Support USC's Findings
Without the April 14, 2017 Avoidance of Contact letter, insufficient evidence supports a finding that appellant's contact with K.N. was prohibited. We therefore reverse.
We note also that USC's April 14, 2017 Avoidance of Contact order contained no exception for reasonable contact necessary for appellant's criminal defense. Because we reverse for other reasons, we have no occasion to consider the fairness of such a "strict-liability" directive, but we are troubled by the "choice" presented to appellant in this instance-adhering to USC's directive and potentially impeding his criminal defense, which could result in life-altering consequences, or violating the directive, which could result in different (albeit less severe), lifealtering consequences.
In light of our holding, we need not consider the parties' other contentions.
DISPOSITION
The trial court's order is reversed. On remand, the court is directed to issue a writ of mandate directing USC to set aside its finding that appellant violated the April 14, 2017 Avoidance of Contact directive. Appellant is awarded his costs on appeal.
We concur: ROTHSCHILD, P. J., WEINGART, J.