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Howard Alan Zochlinski v. the Regents of the University of California et al

January 10, 2013


(Super. Ct. No. CVPT080003413) (Super. Ct. No. CVPT070000009)

The opinion of the court was delivered by: Mauro , J.

Zochlinski v. Regents



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In these consolidated appeals, petitioner Howard Zochlinski challenges the trial court's denial of his petitions for writ of mandate, continuing his efforts to obtain a Ph.D. in genetics from the University of California, Davis (UC Davis), after being disqualified from the genetics graduate department in 1993. In one appeal (No. C065103) he contends the dean of the graduate program lacked authority to reject a decision by the representative assembly of the academic senate to reinstate Zochlinski to the graduate program, and the trial court erred in upholding the dean's decision. In the other appeal (No. C064600) he contends UC Davis abused its discretion in failing to retroactively award him a Ph.D. under what Zochlinski calls the "Three Paper Rule," and the trial court erred in its interpretation of the applicable bylaws, rules and regulations. In both appeals, Zochlinski maintains the trial court applied the wrong standard of review.*fn1

In part I we conclude the trial court applied the appropriate standard of review in both cases. In part II we conclude the trial court correctly determined that the dean of the graduate program did not abuse his discretion in declining to reinstate Zochlinski. And in part III we conclude the trial court correctly determined that UC Davis did not abuse its discretion in declining to award Zochlinski a Ph.D.

We will affirm the judgments.


Appeal No. C065103

Zochlinski was admitted to the Ph.D. program of the UC Davis genetics graduate group in September 1984. Thereafter, he experienced a series of academic difficulties, which led to warnings of possible disqualification from the program. Zochlinski was placed on academic probation due to a low grade point average in 1986, and in 1989 was informed he was making unsatisfactory progress to obtain his degree. His dissertation committee approved a topic on the genetics of aging and, after several extensions, set December 31, 1992, as a final deadline for completion of his dissertation.

Zochlinski turned in a dissertation by the deadline, but his dissertation committee concluded that '[b]ased on repeated missed deadlines and the quality of the final document, we believe the dissertation does not measure up to the Ph.D. standard. Therefore, we recommend dismissal from the Graduate Program." The committee recommended that he receive a master's degree in genetics instead. The dean of graduate studies, Donald Curry, concurred and notified Zochlinski on January 28, 1993.

Zochlinski asked Dean Curry for the opportunity to submit a revised draft, claiming that the emotional trauma caused by his arrest on a stalking charge in mid-November 1992 interfered with his academic work.*fn2 Dean Curry submitted the reworked dissertation to the dissertation committee, noting that "it would certainly be a tragedy if a student did indeed have the capability to submit an acceptable dissertation, but due to extenuating and mitigating circumstances, failed to demonstrate the potential by knowingly submitting an unacceptable draft solely to meet a deadline." However, he stated that if the committee agreed unanimously that the "second version still fail[ed] to 'measure up to the Ph.D. standard,' then that decision will prevail," emphasizing that their academic judgment would be final.

The committee unanimously rejected the revised dissertation. One committee member observed that it failed to follow the agreed upon format, and another observed that it lacked focus and logical progression. The third member stated that considering the amount of time extended to Zochlinski and the fact his revised dissertation showed very little improvement, it was unlikely Zochlinski would be able to submit an acceptable dissertation within a reasonable period of time. Based on the committee's judgment, Dean Curry rejected Zochlinski's appeal.

Over the next decade, Zochlinski filed numerous grievances, appeals, and lawsuits, none of which were successful.*fn3 Between January 1993 and August 2001, his disqualification was reviewed by the UC Davis graduate council, several deans of graduate studies, and the chair and vice chair of the UC Davis academic senate.

At this juncture, it is helpful to discuss the structural hierarchy of the University of California. The California Constitution grants governance authority over the University of California to The Regents of the University of California (the Regents). (Cal. Const., art. IX, § 9.) The Regents authorized the formation of the academic senate. The academic senate, "subject to the approval of the Board [of Regents], shall determine the conditions for admission, for certificates, and for degrees other than honorary degrees. It shall recommend to the President all candidates for degrees in course . . . ." (Standing order of the Regents, § 105.2(a).) Each campus of the University of California has its own "division" of the academic senate, which, in general, exercises the authority of the academic senate over the campus. (Academic senate bylaw 305.) The Davis division has established a number of subsidiary bodies, several of which are relevant to this action. The representative assembly, the division's primary legislative body, is made up of representatives of each of the campus's academic departments. (Davis academic senate bylaw 34.A.) The Davis executive council is a smaller body comprised of leaders of key committees. (Davis academic senate bylaw 73.) The executive council has formed a student petitions subcommittee to decide certain student petitions. (Davis academic senate bylaw 73; legislative ruling 7.07.)

On February 12, 2004, Zochlinski wrote to the chair of the Davis division of the academic senate, petitioning for the Davis representative assembly "to overturn [his] 1993 disqualification from graduate study in genetics and the subsequent denial of [his] appeal." Zochlinski repeated the same arguments he had asserted in his earlier appeals. A special student petitions committee appointed to review the matter issued a report that found "no basis to support the petition," agreed with "the denials of his previous appeals," and recommended that "the current petition be denied as well."

On February 28, 2005, the representative assembly heard Zochlinski's petition in open session. It voted that Zochlinski should be reinstated "as a graduate student advanced to candidacy . . . with full credit for past work." The representative assembly resolution made no findings and gave no rationale for its vote. The only evidence of its reasoning was a subsequent explanation by Academic Senate Chair Daniel Simmons to Graduate Studies Dean Gibeling, stating: "At the Representative Assembly meeting Mr. Zochlinski and his faculty supporters asserted that Mr. Zochlinski's dissertation committee, and subsequently members of the Graduate Council hearing his dismissal appeals, did not appropriately take into account Mr. Zochlinski's troubles with the police stemming from stalking charges. . . . I think that the record is clear that the dissertation submitted by Mr. Zochlinski was substandard. The issue debated by the Assembly was not the quality of the dissertation, but whether Mr. Zochlinski was given an appropriate opportunity to complete his work in light of the difficulties that he faced at the time."

The assembly's resolution implicated a disputed policy question regarding authority over graduate student disqualification within UC Davis. The dispute concerned whether systemwide academic senate regulation 904 (Senate Regulation 904), which provides that "[d]isqualification of graduate students is at the discretion of the Dean of the Graduate Division concerned," conflicted with academic senate bylaws and the standing orders of the Regents. This uncertainty led the Davis division committee on elections, rules, and jurisdiction (CERJ) to request a legislative ruling from UC Davis's academic senate committee on rules and jurisdiction (UCRJ) to clarify whether disqualification and/or reinstatement of graduate students was at the discretion of the dean of graduate studies, as provided in Senate Regulation 904.

Dean Gibeling advised the chair of the Davis academic senate that "Graduate Studies cannot respond [to the representative assembly's resolution] until a determination has been made regarding whether the Representative Assembly's action is advisory or binding." Dean Gibeling confirmed the parties' understanding that "if UCRJ determines that the delegation of authority for disqualification matters was properly delegated to the Dean, then the Senate's position will be that its February 28, 2005 action is advisory only."

The UCRJ ultimately upheld the validity of Senate Regulation 904 with legislative ruling 6.06, which states that the regulation "is consistent with the Code of the Academic Senate. Any Division wishing to assume responsibility for the disqualification of graduate students must submit a request for a variance to Senate Regulation 904, in accordance with Senate Bylaw 80.D." Thereafter, Dean Gibeling reviewed the record and determined not to reverse the disqualification or reinstate Zochlinski. Because Zochlinski claimed Gibeling was biased, Gibeling requested that Interim Provost and Executive Vice Chancellor Barbara Horwitz, the second highest ranking academic official on the Davis campus, independently review his decision. On June 7, 2008, Provost Horwitz concurred with Dean Gibeling in a lengthy written decision.

Meanwhile, on January 2, 2007, Zochlinski filed a petition for writ of mandate (with subheadings entitled writ of mandate A, B and C) and writ of prohibition. He challenged the decision not to reinstate him and named the Regents of the University of California, Gibeling and various other individuals as respondents. Zochlinski alleged that respondents' decision was based on racial animus or for reasons of personal animus, and was in retaliation for Zochlinski's whistleblowing, exercise of his constitutional rights, and his status as an Orthodox Jew. Zochlinski asserted that "Gibeling's psychopathology . . . is the cause of the current situation" as well as "his near-psychotic abuse of discretion and lust for power . . . ." He maintained further that "[n]umerous people in the systemwide senate in Oakland are simply weak [and were probably chosen for that reason] and would not act properly or fairly in [his] case." Zochlinski alleged that UC Davis "has an extensive history of corruption & cover-up involving racism & misogyny; with minority individuals and women are far more likely to be victimized than White Christian males."

Respondents filed a demurrer on various grounds, including that Zochlinski's petition failed to state a cause of action.

In ruling on the demurrer, the trial court observed that Zochlinski's "simple petition" did not require "a 73-page dissertation," and suggested that in the interest of efficiency Zochlinski should present a clear and concise statement of his claims in all future filings with the court. The trial court stated, "Paring the extraneous allegations from the petition, [Zochlinski] asks the court only for an order (1) enforcing the February 28, 2005, vote by the Representative Assembly of the Academic Senate-Davis Division to reinstate [Zochlinski] to the UC Davis Genetics Ph.D. program, and (2) finding that Legislative Ruling 6.06 has no impact on [his] case."

The trial court overruled respondents' demurrer to writ of mandate A, finding that the petition sufficiently alleged that respondents acted in an arbitrary and capricious manner when they refused to abide by the vote of the representative assembly. It sustained the demurrer to writ of mandate B without leave to amend, observing that judicially noticed matters established that the rules of the Davis division did not take precedence over the bylaws, standing orders, and/or regulations of the systemwide academic senate. ...

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