Due Process

$130,000 Attorney Fee in Pomona College's Denial of Due Process

The California Court of Appeal upheld the fee, awarded to a student who had been accused of sexual misconduct.


From Doe v. Pomona College, decided Thursday:

A college student was successful in obtaining a writ overturning his college's finding that he had engaged in sexual misconduct against another student.  Pursuant to Code of Civil Procedure section 1021.5, the court issuing the writ also awarded the student $130,000 in attorney fees….  The college challenges the fee award.  Concluding there was no abuse of discretion, we affirm….

L.A. Superior Court Judge Mary H. Strobel had held for Doe on the merits, because it concluded that Pomona College's disciplinary hearings denied Doe due process:

The 2016 Policy, which supplied the procedural framework for the investigation and prosecution of Roe's complaint, purported to provide the accused with two opportunities to indirectly pose questions to the complainant—namely, (1) the accused could ask the External Adjudicator to overturn the Title IX Coordinator's finding and to outline further investigatory steps to be taken, including having the investigators pose further questions to the complainant, and (2) the accused could submit questions for the External Adjudicator to ask the complainant at the hearing.

Rather than allow Doe either opportunity, the External Adjudicator rejected Doe's request to have the investigators pose additional questions to Roe as part of a continued investigation because it was "more appropriate[]" to question her "at [the] hearing," but when Roe elected not to attend the hearing, faulted Doe for not submitting "questions in advance."  The net result of the External Adjudicator's rulings, [Judge Strobel] found, was to deny Doe any opportunity to question Roe "directly or indirectly" and thus to deny Doe a fair hearing.

The trial court went on to find that this denial was prejudicial.  Noting that the question of Roe's consent turned chiefly on the credibility of the only two percipient witnesses to the incident, the court found it "entirely unclear whether the [External Adjudicator] would have made the same credibility determination had Roe been questioned," especially in light of Roe's inconsistent accounts of the parties' sexual contact.

On appeal, the question was solely whether the $130,000 attorney fee award to Doe was within the trial court's discretion, and the Court of Appeal (per Justice Brian Hoffstadt, joined by Justices Judith Ashmann-Gerst and Victoria M. Chavez), said it was:

As a general rule, parties in litigation pay their own attorney fees. Section 1021.5 is an exception to that rule. Derived from the judicially crafted "private attorney general doctrine," section 1021.5 is aimed at encouraging litigants to pursue meritorious litigation vindicating important rights and benefitting a broad swath of citizens, and it achieves this aim by compensating successful litigants with an award of attorney fees.

To obtain attorney fees under section 1021.5, the moving party must establish that (1) it is "a successful party" in an "action," (2) the action "has resulted in the enforcement of an important right affecting the public interest," (3) the action has "conferred" "a significant benefit" "on the general public or a large class of persons," and (4) an award of attorney fees is "appropriate" in light of "the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity." Because the College does not dispute that Doe is a "successful party" or that an award of fees is "appropriate" in light of the "necessity and financial burden of private enforcement," our analysis is confined to asking whether the trial court abused its discretion in concluding that Doe met the remaining two eligibility requirements.

Enforcement of an important right affecting the public interest

The trial court did not abuse its discretion in ruling that Doe's action enforced an important right affecting the public interest.  Courts have "broadly interpreted the important right concept" to encompass constitutional rights as well as statutory rights that further "important" rather than "trivial or peripheral public policies."

Doe's action enforced two important rights.  First, it enforced the right to a fair hearing.  "[D]ue process undoubtedly is an important right affecting the public interest," and is so critical that our Legislature and courts have required the administrative decisions of even private institutions to afford some modicum of due process.  (§ 1094.5, subds. (a) & (b) [courts may grant writ of administrative mandamus where a "final administrative … decision" was not the product of "a fair trial"]; Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 247-248; Doe v. Allee (2019) 30 Cal.App.5th 1036, 1061, fn. 30.)  Second, Doe's action enforced the right to have "'universit[ies] … comply with [their] own policies and procedures'" "'[w]here student discipline is at issue.'"

Conferring significant benefit on a large class of persons

… The [trial] court had a reasonable basis for concluding that the action conferred a significant benefit because, as noted above, the action effectuated the constitutionally grounded and statutorily enforced right to a fair hearing in administrative proceedings. The court also had a reasonable basis for concluding that Doe's action conferred this benefit upon a large class of persons—namely, the universe of the College's students subject to the College's misapplication of the 2016 Policy due to the College's refusal to rectify such misapplication.

The College proffers two reasons why the trial court nevertheless abused its discretion in concluding that Doe's action conferred a significant benefit upon a large class of persons.

First, the College asserts that Doe's lawsuit did not allege  any intrinsic defects in the 2016 Policy and that the misapplication of that policy in Doe's case arose from a "unique set of circumstances" unlikely to arise again (that is, the External Adjudicator's misunderstanding of Doe's right to ask the investigators to ask follow-up questions of Roe prior to the hearing combined with Roe's last-minute failure to attend the hearing).  We reject this assertion.  Doe's decision not to challenge the 2016 Policy itself is irrelevant because what deprived Doe of a fair hearing was not the policy but its implementation.  As noted above, a lawsuit that forces an entity to follow its own rules can confer a substantial benefit.

The trial court also had a reasonable basis for concluding that the denial of a fair hearing that happened to Doe would recur:  Although the particular circumstances leading to the denial in Doe's case might not recur in exactly the same way, the College's refusal to rectify that denial through its internal appeals process, even when the denial was specifically called to its attention, demonstrated an insensitivity to due process concerns that was likely to recur.  The College's further assertion that the External Adjudicator and the Dean of Students will not make the same mistakes twice ignores that the reason they will not is because of Doe's action….

NEXT: Is Mass Incarceration Inevitable? Part 1. What's the Problem?

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  1. It seems strange for the court of appeals to conclude that the case has a substantial public impact, and yet choose not to publish its own decision.

    1. Eh, I can see their logic. The underlying case had a substantial public impact. The appeals case was only about money – and even smaller, only about the subset of money paid to the attorneys. And it’s that appeals case that they decided not to publish.

    2. They reviewed the trial courts decision for abuse of discretion, seems unlikely that the appeals court considered any of the issues that have the case substantial impact.

  2. I don’t understand (and I can’t see in an answer in the opinion) why a private college like Pomona is required to afford students due process. Aren’t private educational institutions allowed to admit, retain, or expel whomever they choose? Is there something in Title IX that requires due process?

    1. The opinion notes that a California statute, Cal. Code Civ. Proc. sec. 1094.5, has been interpreted to authorize judicial review of the decisions of private organizations that have internal adjudicatory procedures. As best I can tell, that interpretation dates back to Anton v. San Antonio Community Hosp. (Cal. 1977); one can question whether it’s good policy, but it is California law.

    2. Pomona isn’t required to afford anyone a Honda, either….unless they advertise themselves as a Honda dealer and take people’s time and money and promise Hondas in return.

      The issue is that Pomona admitted Doe and told him he could take classes and pursue a degree if he followed their rules. He claims that he did follow their rules, Pomona says he didn’t. He additionally says their process for determining whether rules were violated is flawed, Pomona says it isn’t.

      It’s a factual dispute, just like if a Honda dealer said their Secret Mechanics Tribunal decided your leaky valve isn’t covered under warranty. Maybe they’re right, but you can still take it to court, unless you waived that somewhere in the fine print.

      1. “unless you waived that somewhere in the fine print.”

        That’s pretty much what I contend happened, but the court didn’t find the contract binding upon plaintiff.

    3. I’d argue that private colleges function more like company towns (see Marsh v. Alabama) and should be considered state actors in all instances.

  3. So California officially disapproves of ADR?

    (Presumably, the student accepted the student discipline procedures when the contract was offered, and didn’t oppose them until they didn’t turn out the way he wanted.)

    1. I don’t believe the basis of the lawsuit was because the plaintiff didn’t like the outcome of the school’s student discipline procedures but because the shool didn’t follow their own procedures and their failure to follow those procedures prejudiced the plaintiff.

      1. The procedures were in place when student Doe joined the student body. Presumably, Doe thought they were peachy-keen at that point. Then, later, Doe went to court to complain that he didn’t have to be bound by the outcome of the proceeding.

        That’s a pretty straightforward attack on ADR. You can agree to mediation instead of litigation ahead of time, then change your mind and sue anyway. In California, at least.

        1. Prof V. answered this above. Yes, to the extent that “ADR” includes proceedings covered under the courts’ interpretation of Cal. Code Civ. Proc. sec. 1094.5, California officially disapproves of ADR. Or at least allows judicial review of ADR.

        2. So you’re saying that the official procedures in place when Doe joined the student body specifically included the External Adjudicator’s admitted “misunderstanding” of Doe’s right to have follow-up questions asked? And that those official procedures included a refusal to correct the “misunderstanding” even when confronted with it? That seems… unlikely.

          Yes, California does widely disapprove of ADR. But even in states that favor ADR, you still have to actually follow the procedures set out in the contract.

          1. “So you’re saying that the official procedures in place when Doe joined the student body specifically included the External Adjudicator’s admitted ‘misunderstanding’ of Doe’s right to have follow-up questions asked?”

            The possibility of the proceeding not going as expected was part of the “official procedures”, yes.

  4. Seems like these campus tribunals suck almost as bad as my local police department’s Shakespeare program. Hey, I got a great idea! Let’s try case of serious crimes in the criminal courts.

  5. In the United States the accuser has the right to question his accuser. Being a sexual misconduct charge it is covered under the states penal code thus a crime by state standards. So in this case the defendant had a right to question the alleged victim. Not having the opportunity to do so was a violation of his constitutional rights. I think that this should have been in federal court to reestablish the constitutional right of all students.

    1. Kicking you out of college with a lifelong official stigma, impacting your ability to get into all but the crappiest of schools, and be well-hired thereafter, is just a civil penalty so no biggie.

    2. ” Being a sexual misconduct charge it is covered under the states penal code thus a crime by state standards.”

      Not so fast. The school’s definition of “sexual misconduct” may well be different from the state penal code’s definition, and in any case many tortious actions are also crimes but remain civil torts as well.

      The right to confront your accuser is limited to criminal courts by the text of the sixth amendment. It flatly does not apply to civil actions.

      1. The Sixth Amendment is for criminal cases only.
        But doesn’t the Due Process Clause of the Fifth and Fourteenth Amendments guarantee the right of a civil defendant to subpoena and question the plaintiff?

  6. Still ducking comment on the misconduct allegations concerning (former) Judge Kozinski?


    1. What a complete non-sequitur. Just because the bloggers post about one thing doesn’t mean they are obligated to discuss something else tenuously related through several degrees of separation. Not even when you really want them to post about it because you really would like that incident to impugn anyone who shares some of Judge Kozinski’s views.

      Give it a rest.

      1. “Several degrees of separation?”

        Prof. Volokh clerked for Judge Kozinski.

        The way this works is that Conspirators get to comment as they wish. Others — unless and until the Volokh Conspiracy Board of Censorship bans them, or removes certain comments — get to comment in response. That includes questioning the selection (and avoidance) and treatment of subjects and your half-baked observations about such questions.

        May the better ideas win.

        1. It’s utterly separate from the issue in this post. And why should Volokh comment? There are lots of things that people have personal connections to that they choose not to comment on. I comment on various legal issues here, but if the post concerned a friend or family member, I’d sit that one out.

          So you admit it’s a non-sequitur, but figure you are proving some point by raising it? Okay, man. Keep at it, I guess. Just seems in this marketplace of ideas, nobody’s stopping by your booth.

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