separating (Calif.) complaints for injunctive relief and monetary damages? [Archive]

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04-09-2004, 11:10 PM

Hypothetically speaking, a person in a state (Calif.) believes
he or she has been injured by a state agency.

The person is thus an (allegedly) injured party and
a prospective plaintiff in a tort action in the state.

For the money damages, the person (in Calif.) is required
to file a "government claim form") with the state
Board of Control, as in Calif. Government Code Section 900
et seq.:

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=57747612079+0+0+0&WAISaction=retrieve

and in the Calif. Government Claim Booklet:

www.boc.ca.gov/PubsGC/Forms/GClmBk.pdf

Let's say, hypothetically speaking, that the person has already
filed a government claim form for money damages.

Need the person wait for a response from the (Calif.) Board of Control
before filing a complaint with the appropriate county superior court for
injunctive relief due to the same causes?

TIA...

Guest

04-10-2004, 04:43 PM

On Sat, 10 Apr 2004, "z" <z@y.x.invalid> wrote:
Hypothetically speaking, a person in a state (Calif.) believeshe or she has been injured by a state agency.

Hypothetically speaking, is the enterprise to which you refer above as
a "state agency" (a term not found in the statute you cite below and
which is not necessarily the same as an "agency of the State" or as a
"public agency" as those latter terms are used in that statute) one
that is subject to the state's pre-suit notice of claim requirements?

Did you not suggest in earlier postings that, realistically speaking,
the "agency" that is the target of the here hypothetically referred to
person the Univ. of Calif and, if so, whuddaboud Calif. Gov't. Code
Sect. 905.6?The person is thus an (allegedly) injured party and a prospective plaintiff in a tort action in the state.

Why what has "the state" done (as compared with some individuals
employed by an enterprise owned and operated by an agency of the
state) that makes it sensible to sue "the state"?
For the money damages, the person (in Calif.) is requiredto file a "government claim form") with the stateBoard of Control, as in Calif. Gov't Code Sect. 900et seq.:http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=57747612079+0+0+0&WAISaction=retrieveand in the Calif. Government Claim Booklet: www.boc.ca.gov/PubsGC/Forms/GClmBk.pdf Let's say, hypothetically speaking, that the person has already filed a government claim form for money damages.Need the person wait for a response from the (Calif.) Board of Control before filing a complaint with the appropriate county superior court for injunctive relief due to the same causes? TIA...

Generally? Hypothetically: No. Calif. Gov't. Code Sect. 905 directs
(only) that "[t]here shall be resented in accordance with Chapter 1
(commencing with Section 900) and Chapter 2 (commencing with Section
910) of this part all _CLAIMS_ _FOR_ _MONEY_ _OR_ _DAMAGES_ against
[the defined governmental enterprises covered by those provisions,
except as also therein provided]" (emph. added).

Guest

04-10-2004, 04:43 PM

04-10-2004, 06:01 PM

<esnesnommoc@urthlynk.c0m> pontificated thusly
in message news:40788677.24860364@news.east.earthlink.net... On Sat, 10 Apr 2004, "z" <z@y.x.invalid> wrote:Hypothetically speaking, a person in a state (Calif.) believeshe or she has been injured by a state agency. Hypothetically speaking, is the enterprise to which you refer above as a "state agency" (a term not found in the statute you cite below and which is not necessarily the same as an "agency of the State" or as a "public agency" as those latter terms are used in that statute) one that is subject to the state's pre-suit notice of claim requirements? Did you not suggest in earlier postings that, realistically speaking, the "agency" that is the target of the here hypothetically referred to person the Univ. of Calif and, if so, whuddaboud Calif. Gov't. Code Sect. 905.6?

Bzzt, thanks for playing (and yes, I am well aware of
the special exemptions that the Regents of UC enjoy
within Calif. state law, as well as the motivations
for those special exemptions ;-)
The person is thus an (allegedly) injured party and a prospective plaintiff in a tort action in the state. Why what has "the state" done (as compared with some individuals employed by an enterprise owned and operated by an agency of the state) that makes it sensible to sue "the state"?

The larger enterprise has not taken any visible action
to distance itself from the allegedly tortitious actions
of the employee(s), thus permitting the general impression
to remain that the actions (statements) of the employees
are not differentiated from the employing agency.
For the money damages, the person (in Calif.) is requiredto file a "government claim form") with the stateBoard of Control, as in Calif. Gov't Code Sect. 900et seq.:http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=57747612079+0+0+0&WAI
Saction=retrieveand in the Calif. Government Claim Booklet: www.boc.ca.gov/PubsGC/Forms/GClmBk.pdf Let's say, hypothetically speaking, that the person has already filed a government claim form for money damages.Need the person wait for a response from the (Calif.) Board of Control before filing a complaint with the appropriate county superior court for injunctive relief due to the same causes? TIA... Generally? Hypothetically: No. Calif. Gov't. Code Sect. 905 directs (only) that "[t]here shall be resented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of this part all _CLAIMS_ _FOR_ _MONEY_ _OR_ _DAMAGES_ against [the defined governmental enterprises covered by those provisions, except as also therein provided]" (emph. added).

Kool. Mucho gracias Ms./Mr. esnesnommoc...

04-10-2004, 06:01 PM

Guest

04-12-2004, 07:47 AM

On Sun, 11 Apr 2004, "z" <z@y.x.invalid> wrote:
Why what has "the state" done (as compared with some individuals employed by an enterprise owned and operated by an agency of the state) that makes it sensible to sue "the state"? The larger enterprise has not taken any visible action to distance itself from the allegedly tortitious actions of the employee(s), thus permitting the general impression to remain that the actions (statements) of the employees are not differentiated from the employing agency.

This may be a to you emotionally satisfying response to the quesiton
summarized above, but it is not one well-founded in law.

There is not and many thinking persons would argue that there ought
not be any ort of free-floating obligation imposed by law -- let alone
a just individually-suable "right" enforceable on the demand of any
one distruntled individual -- for a state government to take some not
defined "action" just because it is "visible" to "distance itself"
from what that one disgruntled resident or tax-payer or other person
just "allegedly" claims to be "tortitious action" of an employee of an
enterprise owned and operated by an agency or other sub-division of
the "state" as such on the groundi that that person believes (or,
anyway, would contend) that the state, in its role as such, ought not
"permit" what is said (but, as you have earlier stated the facts, only
by that disgruntled individual and, at that, just by reason of that
persons personal ill-will towards one teacher employed by a
state-owned university) to be a "general impression" that (in the
would-be plaintiff's self-defined and just baldly-stated opinion)
there ought be more "differentiation" than that individual claims to
perceive between the state and the employee (here, a teacher) disliked
by the would-be plaintiff (an apparently emotionally-troubled
student).

You are of course free to file and serve and to try to prosecute a
lawsuit in which you would attempt to allege and prove otherwise,
although the defendants will then be free to try to defend, including,
if they are so advised, by seeking appropriate remedies for what they
might contend is a sanctionable abuse by the plaintiff to be of the
court's processes.

(Of course, actually well-focused if also actually credible persons
who genuinely believe that there really has been some invasion of
their importantly law-redressable rights very likely would have sued
long ago rather than just indugle in numerous repetitive baiting and
near-"trolling" newsgroup postings indulging fantasies about suing
over such a lengthy period that the very number of postings belie even
a passing likelihood of a lawsuit.)

With respect to your related question what, in general, is required
for a "class action":

Read carefully Federal Rule of Civil Procedure 23, which, though
itself technically binding only on the U.S. federal district courts,
pretty fairly summarizes what the Calif. state courts have ruled is
required for "class action" treatment within that state's courts.

Bear in mind, too, that as a _practical_ matter (for one, like you,
who has said you contemplate suing only in pro se form), a "class
action" may be prosecuted as such only with the court's permission,
which, however, will not (because, for many good reasons, should not)
be granted to an unrepresented plaintiff.

Guest

04-12-2004, 07:47 AM

04-12-2004, 11:52 PM

I am not sure you've stated anything that I can reliably
view as being separable from your own personal
opinion.

I guess one fact is clear-- you have pre-judged the case
based on your long distance perceptions of the case.

If a police officer in a city shoots an unarmed citizen
without justification, does not that city become liable
for the actions of the officer as its employer?
Help me out a little bit in explaining your logic, please.

I am attempting to use terms that would be familiar
to a lawyer in an attempt to be more precise.
You are free to poke fun at it if you wish, but
it seems counterproductive and injecting adolescent
humor into the otherwise objective discussion.
In fact I think you've brought up the emotional baggage
so often that I am concerned you are projecting
your own problems onto me.

Now whether or not the plaintiff has any ill-will towards
anyone is yet to be proven. In fact, it's not strictly
speaking relevant to the case, if you review it carefully.

As I have stated before, it is my distinct impression,
based on real live experience, as well as advice,
that most if not virtually all lawyers are reluctant
to represent plaintiffs against universities involving
freedom of speech / slander, etc. related issues. The reason,
I am given to understand, is that lawyers are aware
of a country-club relationship between judges
and universities. Feel free to respond with a vehement
denial along with counterexamples. I would be
very interested to read that.

As to sanctions, our hypothetical plaintiff has
never filed in any superior court before, unlike
the canonical"frivolous filer," if that is indeed
what you are trying to imply. Furthermore,
if everyone were to shirk from filing every lawsuit
due to the prospects of a countersuit, even if they
came to the conclusion that they had suffered
actionable injury, then we could retire the entire
civil court system, because there would no longer
be any suits to consider, yes? I find it tenuous
that a hypothetical university would go after a
hypothetical student whose apparent primary mortal sin
(in the eyes of certain self-righteous net personalities,
that is, at least) was to defend his constitutional right
to freedom of speech in the classroom. Maybe--just
maybe, you understand-- that might be a cause that
might be distantly familiar as well as welcome
in the halls of academe?? (Hello, am I making
any sense here??)

As far as a class action suit goes by a pro se plaintiff,
thanks, I guess that's just one more monopoly we
have the lawyer class to thank for. My, how they seem to
feather their own nest while protesting the needs
and actions of the lowly unwashed (ugh) masses.

Why, the nerve of these lowly unwashed ignorant masses--
if they are students, they might even be naiive enough
to ask, upon receiving injury by a university, what
remedies are available to them, and trust that the
university would mention all possibilities
including that of civil action when they claim to
advise the student of his or her rights(!) For certain,
the role of the university must indeed therefore be to keep
students, like mushrooms, in the dark and covered
with a deep layers of you-know-what when it comes
to student's natural, Constitutional and state rights.
The only reason I am here is because I have not
gotten any informative information from any
universities or any lawyers. Unless you think
this stuff is dirt simple, in which case it should
follow that we can all go pro se and dispense with
the vaunted lawyer class altogether (right?).

I also think you overestimate the emphasis on the slander
considerations and underestimate the importance
of first admendment freedom of speech implications
in the classroom, especially for students who may
someday be entrusted by the state to teach *your*
child or children how (or how not) to think critically
and skeptically, and how and when to stand up
and defend their rights and the rights of those
(many, in this case) who are not in a position to defend
themselves.

Sheesh, I appreciate your adversarial manner to
an extent, but I think you can drop the superior
anointed wonderful being attitude a notch or two,
don't you? (Unless you really *are* Pam Anderson
or Brad Pitt, not to imply that I necessarily like either).

Hey, just a thot... ;-)

<esnesnommoc@urthlynk.c0m> wrote in message
news:407aabca.60712538@news.east.earthlink.net... On Sun, 11 Apr 2004, "z" <z@y.x.invalid> wrote: Why what has "the state" done (as compared with some individuals employed by an enterprise owned and operated by an agency of the state) that makes it sensible to sue "the state"? The larger enterprise has not taken any visible action to distance itself from the allegedly tortitious actions of the employee(s), thus permitting the general impression to remain that the actions (statements) of the employees are not differentiated from the employing agency. This may be a to you emotionally satisfying response to the quesiton summarized above, but it is not one well-founded in law. There is not and many thinking persons would argue that there ought not be any ort of free-floating obligation imposed by law -- let alone a just individually-suable "right" enforceable on the demand of any one distruntled individual -- for a state government to take some not defined "action" just because it is "visible" to "distance itself" from what that one disgruntled resident or tax-payer or other person just "allegedly" claims to be "tortitious action" of an employee of an enterprise owned and operated by an agency or other sub-division of the "state" as such on the groundi that that person believes (or, anyway, would contend) that the state, in its role as such, ought not "permit" what is said (but, as you have earlier stated the facts, only by that disgruntled individual and, at that, just by reason of that persons personal ill-will towards one teacher employed by a state-owned university) to be a "general impression" that (in the would-be plaintiff's self-defined and just baldly-stated opinion) there ought be more "differentiation" than that individual claims to perceive between the state and the employee (here, a teacher) disliked by the would-be plaintiff (an apparently emotionally-troubled student). You are of course free to file and serve and to try to prosecute a lawsuit in which you would attempt to allege and prove otherwise, although the defendants will then be free to try to defend, including, if they are so advised, by seeking appropriate remedies for what they might contend is a sanctionable abuse by the plaintiff to be of the court's processes. (Of course, actually well-focused if also actually credible persons who genuinely believe that there really has been some invasion of their importantly law-redressable rights very likely would have sued long ago rather than just indugle in numerous repetitive baiting and near-"trolling" newsgroup postings indulging fantasies about suing over such a lengthy period that the very number of postings belie even a passing likelihood of a lawsuit.) With respect to your related question what, in general, is required for a "class action": Read carefully Federal Rule of Civil Procedure 23, which, though itself technically binding only on the U.S. federal district courts, pretty fairly summarizes what the Calif. state courts have ruled is required for "class action" treatment within that state's courts. Bear in mind, too, that as a _practical_ matter (for one, like you, who has said you contemplate suing only in pro se form), a "class action" may be prosecuted as such only with the court's permission, which, however, will not (because, for many good reasons, should not) be granted to an unrepresented plaintiff.

04-12-2004, 11:52 PM

Guest

04-13-2004, 09:22 AM

On Tue, 13 Apr 2004, "z" <z@y.x.invalid> wrote:

If a police officer in a city shoots an unarmed citizen without justification, does not that city become liable for the actions of the officer as its employer?

Generally speaking: No, although many states/cities throughout the
U.S. have enacted indemnication laws which have the effect of imposing
liability.

But apart form "soverign immunity" and related principles, generally
speaking, whether a municipality that employs a police officer who has
unjustifiably killed someone will, by reason of that officer's own
wrongful act, standing alone, "become liable" usually (and, certainly,
in your state) depends on whether the muncipality itself did some
wrongful act that contributed meaningfully to the wrong complained of
(e.g., was provably careless in failing properly to train the
officer).

Note, too, that your implied analogy is not helpful to you in the
context of actual concern to you -- namely, that you say that you were
defamed by a teacher employed by a state-run educational institution
in a context which federal "First Amendment" and state constitutional
"free speech" and "academic freedom" and a host of other
university-related principles of law apply.

As I have stated before, it is my distinct impression,based on real live experience, as well as advice,that most if not virtually all lawyers are reluctantto represent plaintiffs against universities involvingfreedom of speech / slander, etc. related issues.

This is probably so, but almost always for reasons having to do with
the _merits_ (or not) of the would be lawsuit, not for the reason you
go on to hypothesize.
The reason, I am given to understand, is that lawyers are aware of a country-club relationship between judgesand universities. Feel free to respond with a vehement denial along with counterexamples. I would be very interested to read that.

What you say you are "given to understand" is not correct. However,
I'm not going to do your legal research for you -- although if you
will find and read carefully even only a fair sampling of decisions
resolving lawsuits attempted against educational institutions in cases
even just roughly (though if fairly) analogous to the one you
fantasize about, you will (readily!) see that there are (many)
well-articulated principles of decision, _including_ in those in which
the plaintiff prevails, which demonstrate quite clearly the
incorrectness of your "country-club relationship" rationalization.
As to sanctions, our hypothetical plaintiff hasnever filed in any superior court before, unlikethe canonical"frivolous filer," if that is indeedwhat you are trying to imply.

Here, too, you make a mistaken assumption: The appropriateness of a
Rule 11 award, in a U.S. federal district court lawsuit, or of a state
court analogous such award is not confined to someone who is a "the
canonical 'frivolous file'" as, instead, the issue, in any particular
case, is whether the tests, in _that_ lawsuit, for "frivolousness" (or
whatever is the state/court-specific comparable rule) is met.

Depending whether the target of a sanctions motion or abuse-of-process
plenary lawsuit has engaged in a pattern of earlier litigation
misconduct that is relevant to the case at hand, that earlier conduct
might (and, in some cases, is) taken into consideration.

But if you are suggesting that a prior such pattern is required as a
condition for the lawful imposition of Rule 11 or like sanction, you
are (seriously) mistaken.
Furthermore, if everyone were to shirk from filing every lawsuit due to the prospects of a countersuit, even if they came to the conclusion that they had suffered actionable injury, then [this would be undesirable].

I agree completely. Nor have I said anything to or about you which
even indirectly suggests otherwise. But your "if everyone"
formulation is also materially self-misleading; since in this and your
related threads, to the extent I (and others) referred to sanctions,
the reference was not to "everyone" in general but, rather, to the
_particular_ would-be lawsuit you seemed to be suggesting you are
contemplating filing.
I find it tenuous that a hypothetical university would go after a hypothetical student whose apparent primary mortal sin . . . was to defend his constitutional right to freedom of speech in the classroom.

Among the core infirmities of approaching real life scenarios/dispute
in "hypothetical" terms is that -- as you demonstrate here -- slogans
too often are substituted for meaningful law-related principle.

Here, for example, you refer to a "constitutional right to freedom of
speech in the classroom" and yet there is not any showing, in any of
your postings, that anyone's such "right" has been even arguably
violated at all. Indeed, you have never reported ("hypothetically" or
otherwise) what, exactly, was said by the "hypothetical student" in
question and also, exactly, by the teacher (other than that the
teacher wondered aloud, as a matter of opinion, whether that student's
continued statments, if continued, would undermine the student's
ability to be a qualified teacher) and (if/as relevant) by the other
students (though you have said that you have a vague memory about and
do not feel secure in believing that you would be actually able to
prove what you think you remember was said); though, relatedly, you
have suggested not merely that that student disagrees with and is
otherwise unhappy about what the _teacher_ said but also that the very
lawsuit you contemplated would be brought (if it is brought) to punish
the teacher forwhat the teacher might contend is the _teacher's
"constitutional right to freedom of speech in the classroom"!
[I speculate and, if I'm right in this respect, think it not a good thing that some university administrators and others treat students as if they are] lowly unwashed ignorant masses [and are annoyed if students ask] what remedies are available to them, and trust that the university would mention all possibilities including that of civil action when they claim to advise the student of his or her rights(!)

You have not said that your university has withheld from you
information what your "rights" are as, to the contrary, at least by
implication, you seem to be acknowledging that your university has
provided you with access to its hard-copy and electronic libraries
which contain any number of actually quite specific texts and related
materials, in addition to the university's own publications including
about student disciplinary/grievance rights/mechanisms, which will aid
you substantially in learning what your rights are and probably will
be.

The problem remains, however, that, apart from some generalizations
amounting to little more than conclusory slogans, you have not (at
least not in any of your newsgoup posting/queries) reported any
specific facts which support concluding that any of your "rights"
(however broadly defined) have been violated by anyone in any manner.
For certain, the role of the university must indeed therefore be to keep students, like mushrooms, in the dark and covered with a deep layers of you-know-what when it comes to student's natural, Constitutional and state rights.

Are there no courses at the university in question addressed (and, at
that, in great detail) to these issues? No books in any of the
institution's libraries? No on-line computer access via the
university's computers? Puh-leeeeeze!!
The only reason I am here [in a newsgroup] is because I have not gotten any informative information from anyuniversities or any lawyers.

Your numerous postings make tthree things very clear: First, that a
number of respondents _have_ provided you with meaningful information,
indeed, in a manner comparatively more substantive, and correct, that
one finds with respect to some other posters/subjects; second, that to
whatever extent that you have not been able to elicit particularized
"informative information" here, the cause is not a deficiency in your
respondents (lawyers or otherwise) but, rather, (and as noted) that
you have been assiduous in relying on generalities at the expesse of
the sort of fact-specifity actually required for meaningful legal
advice; and, third, that you appear to have emotional and related
intellectual difficulty in fully comprehending what, nontheless, you
pretend to be able to opine about.
Unless you think this stuff is dirt simple, in which case it should follow that we can all go pro se and dispense with the vaunted lawyer class altogether (right?).

Not necessarily intellectually brilliant pro se litigants can, and do,
prevail, if they are well-focused in terms of the effort they are
willing to and then do make in timely research and drafting, etc., and
also credible, including practical, in their presentation of the
operative facts.

Your self-avowed dilly-dallying over many months (or is it years?) and
evasiveness about the facts aggravated by the fact -- and it is a fact
-- that those few facts you have stated suggest (very strongly) that
it is not likely that you have any law-cognizable case of any merit
relatedly suggest that you, in particular, are not likely to prevail,
if you ever get around (timely?) to suing.

But you are correct about at least this: It is generally not "dirt
simple" (or even "simple" in any other way) to sue a university
because one of its teachers expressed critical opinions about a
student participant which, however, did not result in any sort of
actually provable damage to that student. Nor should it be.
[Y]ou overestimate the emphasis on the slander considerations . . .

. . . you said (in several postings) that _you_ wanted to sue for
slander and, relatedly, that "slander" was your core grievance . . .
. . . and underestimate the importance of first admendment freedom of speech implications in the classroom, especially for students who may someday be entrusted by the state to teach *your* child or children how (or how not) to think critically and skeptically, and how and when to stand up and defend their rights and the rights of those (many, in this case) who are not in a position to defend themselves.

Not that this matters for the law-related issues you raise, to the
extent you raise any, but I am in favor of teachers thinking
critically and skeptically and intellectually and emotionally able to
stand up and defend their rights and the rights of others (perhaps
especially of those not in a position to defend themselves). More to
the point here, I would also support a lawsuit by a student subjected
to unlawfully-caused damage by a teacher or university perhaps
especially (but not only) if the violation was of that student's
constutionally protected rights of free speech.

My difference with you is that you have not stated any set of facts
which shows (or even indicate) that you (or, if it is someone else,
the "hypothetical student" to which you refer above and elsewhere in
this and related threads) is such a student.

Guest

04-13-2004, 09:22 AM

Christopher Green

04-13-2004, 11:25 AM

"z" <z@y.x.invalid> wrote in message news:<97Mec.50978$if6.11186@newssvr25.news.prodigy.com>... I am not sure you've stated anything that I can reliably view as being separable from your own personal opinion.

Unlike you and I are, your correspondent who styles himself
"esnesnommoc" is a lawyer (though he may express himself in language
that falls quite a bit short of crystalline clarity). Since he is not
your counselor in a matter of law, you will have to settle for his
opinion.

[snip]
Now whether or not the plaintiff has any ill-will towards anyone is yet to be proven. In fact, it's not strictly speaking relevant to the case, if you review it carefully.

Yes, it has a great deal to do with the case. Sanctions for frivolous
lawsuits are easiest to apply when a party appears to be acting out of
ill will rather than a need for redress. Any kind of language that
indicates you are seeking to punish the university rather than be made
whole for whatever damage they may have done you is a strong
indication that your motivation is ill will, and your previous posts
on the subject have contained much language of this kind.

If you have not done so already, this would be a good time to review
California's anti-SLAPP law. (See http://www.casp.net/) It has been an
effective weapon against plaintiffs who bring poorly thought-out
cases, not just defamation cases but any kind of case in which the
defendant has a First Amendment defense. If the university is
successful in using the anti-SLAPP law against you, you could end up
not only with your case dismissed abruptly but also with a bill for
the university's costs.
As I have stated before, it is my distinct impression, based on real live experience, as well as advice, that most if not virtually all lawyers are reluctant to represent plaintiffs against universities involving freedom of speech / slander, etc. related issues. The reason, I am given to understand, is that lawyers are aware of a country-club relationship between judges and universities. Feel free to respond with a vehement denial along with counterexamples. I would be very interested to read that.

You are at least partly right there. Not many lawyers are interested
in taking on a case that has little hope of success, and cases such as
the one you have described in many previous posts could be perceived
as unlikely to succeed.

But the reason is not that there is a special relationship between
judges and universities. The reason is that a university and its
professors are protected especially strongly by the First Amendment.
You will have to come up with a strong case that whatever the
university did to you was far outside the traditional academic
freedoms of a university. The freedom to evaluate students, including
the freedom to give a damning evaluation, may be found to be well
within those freedoms.

if you persist in believing that the justice system is conspired
against you, your belief will become a self-fulfilling prophecy, not
because it is against you, but rather because nobody will help such an
antagonist.

--
Not a lawyer,

Chris Green

Christopher Green

04-13-2004, 11:25 AM

04-13-2004, 01:04 PM

I can understand a certain amount of healthy skepticism,
but perhaps you would be also be willing to extend to me
a measure of privacy since the hypothetical student(s)
may not yet be entirely ready to proceed and identify
himself/herself/themselves, especially given
the number of issues that you and others have raised.

Also I am not sure you appreciate the changing
dynamics of the situation. For example, I only learned
about the California Leonard Law a couple of
weeks ago; and it was not through any of your (admittedly
at times at least somewhat informative) responses that
I learned of it and its potential applicability.

I have read elsewhere that you claim to be a lawyer.
If so, perhaps you would be willing to provide
a consultation to a prospective client rather than continue
to indulge in patronizing behavior. Is there any vow
corresponding to the Hippocrates Oath that lawyers
take upon being admitted to the bar?

Collegially,

-z

<esnesnommoc@urthlynk.c0m> wrote in message
news:407c13ad.73950639@news.east.earthlink.net... On Tue, 13 Apr 2004, "z" <z@y.x.invalid> wrote: If a police officer in a city shoots an unarmed citizen without justification, does not that city become liable for the actions of the officer as its employer? Generally speaking: No, although many states/cities throughout the U.S. have enacted indemnication laws which have the effect of imposing liability. But apart form "soverign immunity" and related principles, generally speaking, whether a municipality that employs a police officer who has unjustifiably killed someone will, by reason of that officer's own wrongful act, standing alone, "become liable" usually (and, certainly, in your state) depends on whether the muncipality itself did some wrongful act that contributed meaningfully to the wrong complained of (e.g., was provably careless in failing properly to train the officer). Note, too, that your implied analogy is not helpful to you in the context of actual concern to you -- namely, that you say that you were defamed by a teacher employed by a state-run educational institution in a context which federal "First Amendment" and state constitutional "free speech" and "academic freedom" and a host of other university-related principles of law apply.As I have stated before, it is my distinct impression,based on real live experience, as well as advice,that most if not virtually all lawyers are reluctantto represent plaintiffs against universities involvingfreedom of speech / slander, etc. related issues. This is probably so, but almost always for reasons having to do with the _merits_ (or not) of the would be lawsuit, not for the reason you go on to hypothesize. The reason, I am given to understand, is that lawyers are aware of a country-club relationship between judgesand universities. Feel free to respond with a vehement denial along with counterexamples. I would be very interested to read that. What you say you are "given to understand" is not correct. However, I'm not going to do your legal research for you -- although if you will find and read carefully even only a fair sampling of decisions resolving lawsuits attempted against educational institutions in cases even just roughly (though if fairly) analogous to the one you fantasize about, you will (readily!) see that there are (many) well-articulated principles of decision, _including_ in those in which the plaintiff prevails, which demonstrate quite clearly the incorrectness of your "country-club relationship" rationalization. As to sanctions, our hypothetical plaintiff hasnever filed in any superior court before, unlikethe canonical"frivolous filer," if that is indeedwhat you are trying to imply. Here, too, you make a mistaken assumption: The appropriateness of a Rule 11 award, in a U.S. federal district court lawsuit, or of a state court analogous such award is not confined to someone who is a "the canonical 'frivolous file'" as, instead, the issue, in any particular case, is whether the tests, in _that_ lawsuit, for "frivolousness" (or whatever is the state/court-specific comparable rule) is met. Depending whether the target of a sanctions motion or abuse-of-process plenary lawsuit has engaged in a pattern of earlier litigation misconduct that is relevant to the case at hand, that earlier conduct might (and, in some cases, is) taken into consideration. But if you are suggesting that a prior such pattern is required as a condition for the lawful imposition of Rule 11 or like sanction, you are (seriously) mistaken. Furthermore, if everyone were to shirk from filing every lawsuit due to the prospects of a countersuit, even if they came to the conclusion that they had suffered actionable injury, then [this would be undesirable]. I agree completely. Nor have I said anything to or about you which even indirectly suggests otherwise. But your "if everyone" formulation is also materially self-misleading; since in this and your related threads, to the extent I (and others) referred to sanctions, the reference was not to "everyone" in general but, rather, to the _particular_ would-be lawsuit you seemed to be suggesting you are contemplating filing. I find it tenuous that a hypothetical university would go after a hypothetical student whose apparent primary mortal sin . . . was to defend his constitutional right to freedom of speech in the classroom. Among the core infirmities of approaching real life scenarios/dispute in "hypothetical" terms is that -- as you demonstrate here -- slogans too often are substituted for meaningful law-related principle. Here, for example, you refer to a "constitutional right to freedom of speech in the classroom" and yet there is not any showing, in any of your postings, that anyone's such "right" has been even arguably violated at all. Indeed, you have never reported ("hypothetically" or otherwise) what, exactly, was said by the "hypothetical student" in question and also, exactly, by the teacher (other than that the teacher wondered aloud, as a matter of opinion, whether that student's continued statments, if continued, would undermine the student's ability to be a qualified teacher) and (if/as relevant) by the other students (though you have said that you have a vague memory about and do not feel secure in believing that you would be actually able to prove what you think you remember was said); though, relatedly, you have suggested not merely that that student disagrees with and is otherwise unhappy about what the _teacher_ said but also that the very lawsuit you contemplated would be brought (if it is brought) to punish the teacher forwhat the teacher might contend is the _teacher's "constitutional right to freedom of speech in the classroom"! [I speculate and, if I'm right in this respect, think it not a good thing that some university administrators and others treat students as if they are] lowly unwashed ignorant masses [and are annoyed if students ask] what remedies are available to them, and trust that the university would mention all possibilities including that of civil action when they claim to advise the student of his or her rights(!) You have not said that your university has withheld from you information what your "rights" are as, to the contrary, at least by implication, you seem to be acknowledging that your university has provided you with access to its hard-copy and electronic libraries which contain any number of actually quite specific texts and related materials, in addition to the university's own publications including about student disciplinary/grievance rights/mechanisms, which will aid you substantially in learning what your rights are and probably will be. The problem remains, however, that, apart from some generalizations amounting to little more than conclusory slogans, you have not (at least not in any of your newsgoup posting/queries) reported any specific facts which support concluding that any of your "rights" (however broadly defined) have been violated by anyone in any manner. For certain, the role of the university must indeed therefore be to keep students, like mushrooms, in the dark and covered with a deep layers of you-know-what when it comes to student's natural, Constitutional and state rights. Are there no courses at the university in question addressed (and, at that, in great detail) to these issues? No books in any of the institution's libraries? No on-line computer access via the university's computers? Puh-leeeeeze!! The only reason I am here [in a newsgroup] is because I have not gotten any informative information from anyuniversities or any lawyers. Your numerous postings make tthree things very clear: First, that a number of respondents _have_ provided you with meaningful information, indeed, in a manner comparatively more substantive, and correct, that one finds with respect to some other posters/subjects; second, that to whatever extent that you have not been able to elicit particularized "informative information" here, the cause is not a deficiency in your respondents (lawyers or otherwise) but, rather, (and as noted) that you have been assiduous in relying on generalities at the expesse of the sort of fact-specifity actually required for meaningful legal advice; and, third, that you appear to have emotional and related intellectual difficulty in fully comprehending what, nontheless, you pretend to be able to opine about. Unless you think this stuff is dirt simple, in which case it should follow that we can all go pro se and dispense with the vaunted lawyer class altogether (right?). Not necessarily intellectually brilliant pro se litigants can, and do, prevail, if they are well-focused in terms of the effort they are willing to and then do make in timely research and drafting, etc., and also credible, including practical, in their presentation of the operative facts. Your self-avowed dilly-dallying over many months (or is it years?) and evasiveness about the facts aggravated by the fact -- and it is a fact -- that those few facts you have stated suggest (very strongly) that it is not likely that you have any law-cognizable case of any merit relatedly suggest that you, in particular, are not likely to prevail, if you ever get around (timely?) to suing. But you are correct about at least this: It is generally not "dirt simple" (or even "simple" in any other way) to sue a university because one of its teachers expressed critical opinions about a student participant which, however, did not result in any sort of actually provable damage to that student. Nor should it be. [Y]ou overestimate the emphasis on the slander considerations . . . . . . you said (in several postings) that _you_ wanted to sue for slander and, relatedly, that "slander" was your core grievance . . . . . . and underestimate the importance of first admendment freedom of speech implications in the classroom, especially for students who may someday be entrusted by the state to teach *your* child or children how (or how not) to think critically and skeptically, and how and when to stand up and defend their rights and the rights of those (many, in this case) who are not in a position to defend themselves. Not that this matters for the law-related issues you raise, to the extent you raise any, but I am in favor of teachers thinking critically and skeptically and intellectually and emotionally able to stand up and defend their rights and the rights of others (perhaps especially of those not in a position to defend themselves). More to the point here, I would also support a lawsuit by a student subjected to unlawfully-caused damage by a teacher or university perhaps especially (but not only) if the violation was of that student's constutionally protected rights of free speech. My difference with you is that you have not stated any set of facts which shows (or even indicate) that you (or, if it is someone else, the "hypothetical student" to which you refer above and elsewhere in this and related threads) is such a student.

04-13-2004, 01:04 PM

Guest

04-14-2004, 11:24 AM

On Tue, 13 Apr 2004, "z" <z@y.x.invalid> wrote:
I only learned about the California Leonard Law a couple of weeks ago . . . not through any of your . . . responses . . . its potential applicability.

I did not cite that statute to you only because you did not say in any
of your postings/queries that the still by you unidentified college or
university at issue is one covered by that law or, if it is, whether
any portion of your would-be lawsuit would be based on a claim that it
made or was seeking to enforce a rule to subject you as a student to
disciplinary sanction solely by reason of your speech or other
communication there which, if engaged in by you away from that
institution, would be protected by the U.S. constiution's First
Amendment or Calif. constitution Art. 1 / Sect. 2 from governmental
restriction and also because (in this connection) your initiating
postings seemed focused on a contemplated lawsuit to recover monetary
damages (not provided for in that law) and yet you did not begin even
to hint until later postings that you might sue for declaratory or
injunctive relief whle you still have not reported any acts (not even
in "hypothetical" form) done by that institution that would make it
suable (if a lawsuit were brought in good faith) under color of that
statute.

(How/why, then, you nonethess refer to that statute's "potential
applicability" is therefore a relatedly still unanswered question --
NOT that I'm asking!)

The lack in this respect, in other words, was not unfamiliary with
that statute, but, instead (and yet as I have repeatedly cautioned
you) that you were insuffiently clear about the underlying facts and
so did not enable a comprehensive response that would be reliable.

And while you are hardly alone in failing to pay adequate attention to
the prime importance of factual specifity for real life legal
question, that you continue even after having been cautioned about
this need to dwell on generalizations and just vaguely stated theory
at the expense of having reported even the basic underlying facts you
would contend to be realistically provable ought not make you
optimistic about the prospects of success if you continue in this
pattern of behavior.

(This is of course not to say that you are obliged in a basically
public forum to disclose confidential matters to others; for,
obviously, you are not. It is just that it would be a mistake for you
to assume that reliable analysis is possible without realistically
stated factual specifity.)
I have read elsewhere that you claim to be a lawyer. * * *

Another poster guessed that I am a lawyer.

I haven't made any autobiographical statements in this connection.
Is there any vow corresponding to the Hippocrates Oath that lawyers take upon being admitted to the bar?

Depending, of course, on what you mean by "corresponding" and yet also
arguably in comparatively more detail, generally/roughly speaking:
Yes.

A condition of becoming and thereafter remaining admitted/licensed to
practice law is that the attorney agree to be bound by the applicable
jursidiction's laws relating to attorney conduct, including
comparatively lengthy/detailed ethical rules. An attorney who does
not comply with these requirements can be (and, unfortunately, each
year, some are) subject to potentially very serious sanction,
including suspension or permanent disbarment.

Guest

04-14-2004, 11:24 AM

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