Opinion
No. C-01-1277-PJH
August 16, 2001
ORDER RE: DEFENDANTS' MOTION TO DISMISS
Defendants' motion to dismiss the complaint for failure to state a claim came on for hearing on June 27, 2001, before this court, the Honorable Phyllis J. Hamilton presiding. Plaintiff appeared in propria persona, and defendants appeared by their counsel, Sarah Harpham. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby finds that defendants' motion should be GRANTED for the following reasons.
BACKGROUND
Plaintiff Cohn Gallagher ("Gallagher") filed suit on March 1, 2001 against the University of California Hastings College of the Law ("Hastings") and the following individuals in their official capacities: Dean of the College, Mary Kay Kane; Academic Dean, Leo Martimez; eight members of the Board of Directors of the College; and five unnamed members of the selection committee for the William J. Riegger Memorial Prize. Plaintiff alleges viewpoint discrimination in violation of the First and Fourteenth Amendments to the U.S. Constitution. He also claims that this discrimination violated numerous state statutes; California Education Code sections 66270 and 66301; California Labor Code section 1101; California Government Code sections 3565, 3571, and 12940; California Civil Code sections 1584 and 3294.
According to his complaint, Gallagher, while a student and employee of Hastings, submitted an essay on February 28, 2000 to be considered for the William J. Riegger Memorial Prize. The prize was "designated to recognize outstanding student written works in the field of international law for students enrolled at Hastings." Pl.'s Compl. Ex. A. The prize winner was to be chosen by a committee appointed by the Academic Dean. Gallagher, an openly gay man, entitled his paper "International Recognition of Same-Sex Relationships." Although his was the only entry submitted, he was informed by letter that the committee had decided not to award the prize that year. Gallagher further alleges that the secretary to the Academic Dean told him that the committee did not consider the subject matter of his essay to be an appropriate topic for the prize. In October of 1997, prior to entering the Riegger Prize contest, Gallagher had been involved in an effort to persuade Hastings to provide spousal benefits to the same-sex domestic partners of its employees. Gallagher alleges that the committee did not award him the prize in retaliation for his activities in connection with the same-sex benefits issue.
Defendants seek an order dismissing the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In their motion, defendants argue that Gallagher's viewpoint discrimination claim should be dismissed because he lacks standing to bring such a claim and because he does not allege facts sufficient to state such a claim. They argue that the Education Code section 66270 claim should be dismissed because Gallagher fails to allege a "program or activity" as required by the statute. They assert that Gallagher fails to state a claim for a violation of Education Code section 66301, because he does not allege a "disciplinary sanction." They also contend that Gallagher's claims for violations of California Labor Code section 1101, California Government Code sections 3565, 3571, and 12940 fail because the facts he alleges took place outside the employment context. Gallagher's claim for a violation of California Civil Code section 1584, defendants argue, should be likewise dismissed because he fails to allege the existence of a binding contract. Finally, defendants argue that Gallagher's claim for a violation of California Civil Code 3294 should be dismissed because that statute does not provide a cause of action.
At the June 27, 2001 hearing on the motion to dismiss, the court raised the issue of whether the Eleventh Amendment bars this action in federal court, and requested the parties submit supplemental briefs on the issue.
A court may raise the issue of sovereign immunity sua sponte. See Charley's Taxi Radio Dispatch Corp. v. SIDA of Haw., Inc., 810 F.2d 869, 873 n. 2 (9th Cir. 1987) ("[F]he effect of the Eleventh Amendment must be considered sua sponte by federal courts"); Inrejackson, 184 F.3d 1046, 1048 (9th Cir. 1999) ("Eleventh Amendment sovereign immunity limits the jurisdiction of the federal courts and can be raised by a party at any time during judicial proceedings, or by the court sua sponte").
DISCUSSION
A. Legal Standard
A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of the claim or claims stated in the complaint. Schwarzer, Tashima Wagstaffe, Federal Civil Procedure Before Trial § 9:187. The court must decide whether the facts alleged, if true, would entitle plaintiff to some form of legal remedy. Unless the answer is unequivocally "no," the motion must be denied. Id.
A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or the "absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). A claim should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45 (1957).
In resolving a Rule 12(b)(6) motion, the court must 1) construe the complaint in the light most favorable to the plaintiff; 2) accept the well-pleaded factual allegations as true; and 3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337 (9th Cir. 1996). Courts are particularly liberal in construing civil rights claims by parties appearing pro se. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Balistreri, 901 F.2d at 699.
B. Defendants' 12(b)(6) Motion
1. Eleventh Amendment Immunity
The Eleventh Amendment to the U.S. Constitution states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Supreme Court has interpreted this amendment to bar from federal court suits against a state by its own citizens. See BV Engineering v. Univ. of Cal., Los Angeles, 858 F.2d 1394, 1395, 1400 (9th Cir. 1998). This bar extends to state officials sued for damages in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 169 (1985).
There are only two exceptions to this rule. IA. at 1396. First, a state may waive its right to immunity. Id. A waiver is effected by a state's express consent to suit, a state statute or constitutional provision expressly allowing such suits, or a state's participation in a program for which Congress requires a waiver of immunity. Id. Second, Congress can in certain circumstances override a state's right to immunity by creating a cause of action for damages against a state. Id. Neither of these situations is present here.
Gallagher, in his brief, argues that defendants waived their state immunity defense by failing to raise it in their motion to dismiss. However, "Eleventh Amendment sovereign immunity limits the jurisdiction of the federal courts and can be raised by a party atanylime during judicial proceedings." In re Jackson, 184 F.3d at 1048 (9th Cir. 1999) (emphasis added).
The primary issue in this case is whether Hastings qualifies as an "arm of the state" and is therefore entitled to Eleventh Amendment immunity. The case law is clear that the University of California, with which Hastings is "affiliated," Cal. Educ. Code § 92201, does qualify as an arm of the state for Eleventh Amendment immunity purposes. See Hamilton v. Regents of Univ. of Cal., 293 U.S. 245, 257 (1934) (the University of California "is a constitutional department or function of the state government."); Thompson v. Los Angeles, 885 F.2d 1439, 1442 (9th Cir. 1989) (the University of California is a state instrumentality for Eleventh Amendment purposes and therefore not subject to a suit for damages under § 1983); BMEngineering, 858 F.2d at 1395 (the Eleventh Amendment immunizes the University of California from suit under the Copyright Act of 1976). However, neither the court nor the parties could find any authority specifically addressing the issue of Hastings' status.
To determine whether a state agency qualifies as an arm of the state, courts normally employ a multi-factor balancing test, which involves weighing the following factors: 1) whether a money judgment would be satisfied out of state funds, 2) whether the entity performs central governmental functions, 3) whether the entity may sue or be sued, 4) whether the entity has the power to take property in its own name or only the name of the state, and 5) the corporate status of the entity. Belanger v. Madera Unified School Dist., 963 F.2d 248, 250-51, (9th Cir. 1992). of these factors, the first is the most important: "[t]he most crucial question . . . is whether the named defendant has such independent status that a judgment against the defendant would not impact the state treasury." Id. (internal citations omitted).
Applying the balancing test to the facts of the case at bar leads the court to conclude that Hastings should be considered an arm of the state for the purposes of Eleventh Amendment immunity. In regard to the first factor, Gallagher argues that a monetary judgment would not necessarily be paid out of state funds, since Hastings has sources of funding other than the state. The court, however, finds this argument lacks force for several reasons. First, although Hastings does have other sources of funding, the state provides the majority share of Hastings' operating budget. Furthermore, even if Hastings were to satisfy a judgment with money from non-state sources, such a payment could still impact the state treasury indirectly. As the court said in Belanger, "Any [non-state] funds withdrawn from the budget to pay a judgment are unavailable for educational purposes, and state funds in the budget must cover any critical education expenses that the [non| state] funds would have covered absent the judgment." Id. at 252. Finally, defendants point out that Gallagher's argument that a monetary judgment could be paid out of the non| state sources could apply just as readily to the University of California. Yet, as previously mentioned, the University of California has repeatedly been held to be an arm of the state for Eleventh Amendment purposes.
The second factor, whether the entity performs central governmental functions, also supports a finding that Hastings is an arm of the state. Gallagher argues that the service Hastings provides is not a "uniquely governmental function" because private law schools have a similar function. However, Hastings is a public school. The University of California is enshrined in the California Constitution, article IX, section 9, and Hastings is designated the law department thereof. Cal. Educ. Code § 92201. "California law is well settled that providing public education is a state function." Belanger, 963 F.2d at 253. In addition, Gallagher's argument that Hastings does not perform a central governmental function because private schools provide a similar function could just as readily be applied to the University of California, which has been held to be an arm of the state.
The third factor involves a consideration of whether or not the entity in question may sue or be sued. While it is true that Hastings can sue and be sued, this fact is not dispositive. The University of California can sue and be sued and yet is an arm of the state. Likewise, in Belanger, the court found a school district to be a state agency, despite the fact that it could sue and be sued. Id. at 254. Regarding the fourth factor, defendants concede that Hastings can own property in its own name. However, again this factor is not dispositive. see, e.g., id.
The fifth factor requires looking at the corporate status of the entity. Gallagher argues that the corporate structure of Hastings differs from that of the University of California, because one of the board members of Hastings is an heir to the Hastings family, rather than an appointee of the governor of the State of California. However, this difference does not seem significant, especially considered in light of authority indicating that Hastings is part of the University of California and for legal purposes should be treated the same way. See Foltz v. Hoge, 54 Cal. 28, 33, 35 (1879) (in which the court states the legislature intended that "the University and the affiliated College should constitute one institution and be governed by the same laws"; and that Hastings "was affiliated with the University, and thus became an integral part of it, and . . . subject to the same general provisions of law"); Tafoya v. Hastings College, 191 Cal.App.3d 437 (1987) (in which the court states that Hastings is "one of the two special colleges affiliated with the University" and that "it is clear that the Legislature intended Hastings to constitute a branch of the University, governed by the same laws").
In sum, three of the five factors, including the most important factor, support a finding that Hastings should be treated as an arm of the state for Eleventh Amendment immunity purposes. Accordingly, the defendants' motion to dismiss the entire complaint is GRANTED based on Eleventh Amendment immunity. Having found this basis for dismissal, the court finds it unnecessary to address the other grounds advanced by defendant. The dismissal is without leave to amend because an amendment would be futile in view of the court's finding that the defendants enjoy sovereign immunity. ZScbreiher Dist. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (leave to amend should be denied only if the court determines "allegations of other facts consistent with the challenged pleading could not possibly cure the defect."); Doe v. U.S., 58 F.3d 494, 497 (9th Cir. 1995).
CONCLUSION
For the foregoing reasons, the court hereby GRANTS defendants' motion to dismiss. This order fully adjudicates the motion listed at No. 5 on the clerk's docket for this case. This order also terminates all other pending motions and closes the case.