Chan v. the Judicial Council of Cal.

199 Cal.App.4th 194

131 Cal.Rptr.3d 32

11 Cal. Daily Op. Serv. 11,837

2011 Daily Journal D.A.R. 14,105

Sam CHAN et al., Plaintiffs and Appellants,

v.The JUDICIAL COUNCIL OF CALIFORNIA, Defendant and Respondent.

No. B224332.

Court of Appeal, Second District,Division 8.

Sept. 15, 2011.

Scott Law Firm, John Houston Scott and Lizabeth N. de Vries, San Francisco, for Plaintiffs and Appellants.Paul, Plevin, Sullivan & Connaughton, Sandra L. McDonough and Marie A. Lavanier San Diego, for Defendant and Respondent.FLIER, J.

Appellants are previously licensed court interpreters in Mandarin, Russian, or Armenian who failed to comply with new licensing requirements. Prior to 2009, interpreters in those languages became eligible to interpret by passing English language proficiency examinations. Respondent the Judicial Council of California, beginning in 2009, required that appellants and other interpreters in certain languages pass bilingual proficiency exams. At the same time, respondent granted automatic eligibility to interpreters who had helped develop the new exams. Appellants appeal from the trial court's grant of a summary judgment to respondent. Appellants assert due process and equal protection claims. We affirm.

PROCEDURAL HISTORY

Appellants' complaint alleged: (1) respondent violated appellants' due process rights by requiring that they pass new rigorous certifying exams by February 1, 2009, in order to remain court interpreters; and (2) respondent violated appellants' equal protection rights by allowing certain interpreters to be grandfathered in or temporarily exempted from these new certifying exams without offering appellants the same opportunity. Appellants also sought a judicial determination as to whether the February 1, 2009 certification deadline applies to appellants and a permanent injunction preventing respondent from enforcing the current certification requirement against the affected court interpreters.

In response, respondent filed a motion for summary judgment. The trial court granted the motion, ruling that (1) appellants' due process cause of action cannot be established because there is no protectable property interest in being a certified interpreter; (2) appellants' equal protection cause of action cannot be established because they were neither similarly situated to the interpreters who were on a 1996 list of approved interpreters (there is no such list in the record) nor to the five subject matter experts who were certified without having to take the certification exams; and (3) appellants are not entitled to declaratory or injunctive relief. Appellants filed a timely appeal.

FACTS

The material facts in this case are undisputed. In 1990, the Chief Justice of California gave respondent control over the administration of California's court interpreter licensing regime.¹ ( Gov.Code,² § 68560, subd. (d).) Respondent then contracted with the testing entity Cooperative Personnel Services (CPS) to help develop and administer licensing exams.

In 2000, respondent designated Mandarin, Russian, and Armenian (hereinafter affected languages) as languages requiring more rigorous court interpreter examinations.³ Accordingly, all court interpreters in the affected languages were subsequently required to pass a certification exam.⁴ CPS selected a number of interpreters, described as subject matter experts (SME's), to help develop certification exams. CPS did not select any of the appellants to serve as SME's. After developing the new exams, CPS recommended granting five of the SME's automatic certification because they helped create the exams. Respondent then granted these five SME's certification.

CPS finished creating the certification exams in 2004. Due to a number of grace periods and exemptions, however, five of the nine appellants were given until February 1, 2009, to obtain certification and four were given until February 1, 2010.⁵ Appellants failed to obtain certification and subsequently filed this suit.

STANDARD OF REVIEW

“In reviewing the summary judgment, we independently examine the supporting and opposing papers to determine whether they reveal any material issue of fact and whether the moving party was entitled to judgment as a matter of law.” ( Bernson v. Browning–Ferris Industries (1994) 7 Cal.4th 926, 929, 30 Cal.Rptr.2d 440, 873 P.2d 613; see also Code Civ. Proc., § 437c, subd. (c).) We strictly construe the moving party's evidence and liberally construe the opponent's evidence. ( Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189, 43 Cal.Rptr.2d 392.) The material issues must be set out in the complaint. (See Keniston v. American Nat. Ins. Co. (1973) 31 Cal.App.3d 803, 812, 107 Cal.Rptr. 583.) The affidavits and declarations disclose whether there are triable issues of facts. ( Orange County Air Pollution Control Dist. v. Superior Court (1972) 27 Cal.App.3d 109, 113, 103 Cal.Rptr. 410.)

DISCUSSION

1. Due ProcessA. Procedural Due Process

Appellants allege that respondent violated their procedural due process rights by requiring them to obtain certification by February 1, 2009, without giving them sufficient opportunity to comply with new certification procedures. Appellants further argue that they had protectable property interests in remaining certified court interpreters.

The federal and California Constitutions place procedural constraints on the deprivation of property interests. (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15.) “[P]roperty interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money.” ( Board of Regents v. Roth (1972) 408 U.S. 564, 571–572, 92 S.Ct. 2701, 33 L.Ed.2d 548.) However, a “claimant must ... identify a statutorily conferred benefit or interest of which he or she has been deprived.” ( Ryan v. California Interscholastic Federation–San Diego Section (2001) 94 Cal.App.4th 1048, 1071, 114 Cal.Rptr.2d 798.) Specifically, a party must demonstrate a promise or guarantee of a specific benefit or right in the entity's policies or state law. (See Roth, supra, at pp. 577–578, 92 S.Ct. 2701.) The question on appeal is whether court interpreters certified before 2009 who do not comply with new certification procedures nonetheless possess property interests in remaining certified interpreters. We do not think that they do.

Public employees generally do not possess property interests in continuing in employment contrary to or beyond the terms imposed by the relevant statute. (See, e.g., Miller v. State of California (1977) 18 Cal.3d 808, 813–814, 135 Cal.Rptr. 386, 557 P.2d 970 [public employee required to retire at age 67, three years after a statute lowered the mandatory retirement age from 70, had no vested contractual right to remain employed until age 70].) The question of whether a statute creates an expectation of entitlement sufficient to create a property interest “will depend largely upon the extent to which the statute contains mandatory language that restricts the discretion of the [licensing authority] to deny licenses to applicants who claim to meet minimum eligibility requirements.” ( Jacobson v. Hannifin (9th Cir.1980) 627 F.2d 177, 180.)

“[A]n applicant does not have a property interest in the renewal of a license if the reviewing body has discretion to deny renewal or to impose licensing criteria of its own creation.” ( Thornton v. City of St. Helens (9th Cir.2005) 425 F.3d 1158, 1165.) In this case, the Court Interpreter Services Act expressly provides respondent with the discretion to adopt certification procedures.⁶

While the lack of a specific statute or contract that creates a property interest “does not necessarily foreclose the possibility that a property interest might have been created,” “the absence of such formal sources is ‘highly relevant’ to the due process question.” ( Doran v. Houle (9th Cir.1983) 721 F.2d 1182, 1185, citing Perry v. Sindermann (1972) 408 U.S. 593, 602, 92 S.Ct. 2694, 33 L.Ed.2d 570.) However, even without the appropriate statutory language, a property interest can still be created “based on the conduct and representations of government officials when their actions lead to the creation of a ‘mutually explicit understanding’.” ( Doran, supra, at p. 1185, citing Perry, supra, at p. 601, 92 S.Ct. 2694.)

Without citing any supporting facts, appellants claim that respondent's actions led to an understanding that appellants held a legitimate claim of entitlement. Appellants' complaint states that they were told they were registered to interpret until 2010. Appellants may also have had court badges that had expiration dates of February 2010 or later. However, the record presents undisputed evidence that respondent did not guarantee appellants indefinite employment as court interpreters. Respondent gave notice to appellants that they would be unable to interpret if they did not comply with the new certification procedures. Appellants received clear notice that certification would be required after their respective languages were designated.

Appellants do not possess property interests in continued employment without successfully completing the appropriate certification procedures. The trial court's grant of summary judgment as to appellants' procedural due process claims was proper.

B. Substantive Due Process

Substantive due process “prevents government from enacting legislation that is ‘arbitrary’ or ‘discriminatory’ or lacks ‘a reasonable relation to a proper legislative purpose.’ ” ( Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 771, 66 Cal.Rptr.2d 672, 941 P.2d 851, quoting Nebbia v. New York (1934) 291 U.S. 502, 537, 54 S.Ct. 505, 78 L.Ed. 940.) “To establish a substantive due process claim, a plaintiff must, as a threshold matter, show a government deprivation of life, liberty, or property.” ( Nunez v. City of Los Angeles (9th Cir.1998) 147 F.3d 867, 871.)

As discussed earlier in this opinion, appellants...