California Supreme Court Watch

#20-249 Boermeester v. Carry, S263180. (B290675; 49 Cal.App.5th 682; Los Angeles County Superior Court; BS170473.) Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case includes the following issue: Does the common law right to fair procedure require private universities to provide for cross-examination of witnesses at a live hearing in the context of allegations of domestic violence?

Review granted: 9/16/2020

In this case in which review was previously granted, the court ordered the parties to brief the following issues: (1) Under what circumstances, if any, does the common law right to fair procedure require a private university to afford a student who is the subject of a disciplinary proceeding with the opportunity to utilize certain procedural processes, such as cross-examination of witnesses at a live hearing? (2) Did the student who was the subject of the disciplinary proceeding in this matter waive or forfeit any right he may have had to cross-examine witnesses at a live hearing? (3) Assuming it was error for the university to fail to provide the accused student with the opportunity to cross-examine witnesses at a live hearing in this matter, was the error harmless?

Issues ordered limited: 9/30/2020

In this case in which review was previously granted, the court ordered the parties to brief the following issue in addition to those previously specified: What effect, if any, does Senate Bill No. 493 (2019-2020 Reg. Sess.) have on the resolution of the issues presented by this case?

Additional issues ordered: 10/14/2020

Case fully briefed: 6/01/2021

Cause argued and submitted: 5/09/2023

Opinion filed: Judgment reversed: 7/31/2023

See the California Court of Appeal Opinion.

See the Petition for Review.

See the Oral Argument.

See the California Supreme Court Opinion.  (Boermeester v. Carry (2023) 15 Cal.5th 72.)

“We hold that, though private universities are required to comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, they are not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually. Requiring private universities to conduct the sort of hearing the Court of Appeal majority envisioned would be contrary to our long-standing fair procedure admonition that courts should not attempt to fix any rigid procedures that private organizations must ‘invariably’ adopt. (Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555 (Pinsker II).) Instead, private organizations should ‘retain the initial and primary responsibility for devising a method’ to ensure adequate notice and a meaningful opportunity to be heard. (Ibid.) We accordingly reverse the Court of Appeal’s judgment.”

Justice Groban authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, Jenkins, and Evans concurred.