Barr v. City of San Diego

GRIFFIN, P. J. In his petition for writ of mandate against defendants and respondents city of San Diego, members and directors of its civil service commission and Chief of Police A. E. Jansen, plaintiff and appellant alleges generally that for 14 years he was a police officer in the city of San Diego under classified civil service; that on September 9, 1956, a quantity of marijuana was found in plaintiff’s possession and on said date he was suspended from his position and placed in jail; that thereafter on September 12, 1956, he received a copy of a letter sent by said defendant chief of police to the civil service commission informing the commission that plaintiff had been discharged from the department as of September 10, 1956, because when he was arrested by [777]officers of the department there was found a quantity of marijuana in his possession; that plaintiff would be charged with such offense and prosecuted in the state courts and that plaintiff was given the opportunity to resign from the department but declined to do so.

It is then alleged that plaintiff demanded a hearing within five days, as required by section 23.1204, San Diego Municipal Code, but due to certain representations made by the personnel director he did not assert his rights at that time; that he was brought to trial in the superior court on a criminal charge of illegal possession of marijuana; that a mistrial resulted at the first trial of the case; that the jury disagreed at a second trial and that he was acquitted on a third trial; that he sought a hearing for reinstatement before the civil service commission and it refused such hearing because a proper and timely demand had not been made within the prescribed period; that, as a result of mandamus proceedings in the superior court, the commission ivas ordered to hold such hearing and that such hearing be limited to the charges contained in the letter from the chief of police to the civil service commission. Pursuant to this writ, a hearing was had and the civil service commission entered its findings of fact and decision that plaintiff was in unlawful and improper possession of marijuana on the date alleged and concluded that plaintiff had been guilty of conduct unbecoming an officer or employee of the city. It affirmed the actions of the chief of police in discharging plaintiff.

Plaintiff claimed before the trial court on the hearing of this writ of mandate to restore plaintiff to his former position, with back pay, that he was not afforded a full and fair hearing before said commission; that it had exceeded its jurisdiction; that the hearing was not held as prescribed by law; and that the commission had acted arbitrarily and abused its discretion. It is here argued that the evidence produced at said hearing before the commission was insufficient and obtained by illegal search and seizure and that plaintiff was prejudiced in his defense by refusal of the police department and the commission to reveal the identity of a claimed “informer.” (Citing such authority as Roviaro v. United States, 353 U.S. 53 [77 S.Ct. 623, 1 L.Ed.2d 639]; Portomene v. United States, 221 F.2d 582; Sorrentino v. United States, 163 F.2d 627; United States v. Conforti, 200 F.2d 365, and People v. McShann, 50 Cal.2d 802 [330 P.2d 33].)