Konig

In Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 267 [ 284 Cal.Rptr. 718 , 814 P.2d 704 ] (Walnut Creek Manor), we held that the Fair Employment and Housing Commission’s (Commission) award of emotional distress damages to a housing discrimination complainant violated the California Constitution’s judicial powers clause (Cal. Const., art. VI, § l). 1 In this case, we decide whether Walnut Creek Manor prohibits such an award under these facts, and whether subsequent amendments to the California Fair Employment and Housing Act (FEHA) (Gov. Code, 2 § 12900 et seq.) have eliminated the constitutional concerns we identified in our 1991 decision. Contrary to the Court of Appeal below, we conclude that Walnut Creek Manor is distinguishable, and that the amendments, in particular the judicial option provision (§ 12989), remedy separation of powers concerns over the Commission’s authority to award emotional distress damages. (§ 12987, subd. (a)(4).) Thus, we reverse the Court of Appeal’s judgment.

Factual and Procedural Background

The facts are largely taken from the Court of Appeal’s opinion.

Sheryl Annette McCoy, an African-American police officer,…

In this case brought under the state Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), the majority upholds the authority of the Fair Employment and Housing Commission (Commission) to award compensatory damages for emotional distress to housing discrimination victims. 1 In doing so, the majority declines to follow an 11-year-old decision of this court, Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 267 [ 284 Cal.Rptr. 718 , 814 P.2d 704 ] (Walnut Creek Manor), which, over my dissent, held that the Commission’s award of compensatory damages violated our state Constitution’s judicial powers clause (Cal. Const., art. VI, § 1). That constitutional provision allows adjudications by administrative bodies only when reasonably necessary to further the purposes of the law being enforced.

Unlike the majority in Walnut Creek Manor , I would in that case have upheld the Commission’s award of compensatory damages to Robert Cannon, a 55-year-old African-American man, who for two and a half years unsuccessfully sought to rent an apartment in a large complex and, while on a waiting list, was passed over 35 times. In each instance, the unit was…

The notion that the acquiescence of parties to an administrative proceeding sanctions constitutionally suspect jurisdiction ignores the reason structural restraints, like the judicial powers clause, were built into constitutions in the first instance. The idea was to create a complex system of checks and balances that would operate to “counteract the effects of faction despite the inevitability of the factional spirit” (Sunstein, Interest Groups in American Public Law (1985) 38 Stan. L.Rev. 29, 44) and “prevent both majorities and minorities from usurping government power to distribute wealth or opportunities in their favor.” (Ibid.) These days, however, the Madisonian world has gone “topsy turvy” as factions, defined as groups “ ‘activated by some common interest . . . ,’ have become sectors of policy.” (Golembiewski & Wildavsky, The Cost of Federalism, Bare Bones: Putting Flesh on the Skeleton of American Federalism (1984) p. 73.) “Indeed,” as Aaron Wildavsky notes, “government now pays citizens to organize, lawyers to sue, and politicians to run for office. Soon enough, if current *760 trends continue, government will become self-contained, generating (apparently spontaneously)…

In Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 267 , 284 Cal.Rptr. 718 , 814 P.2d 704 (Walnut Creek Manor ), we held that the Fair Employment and Housing Commission's (Commission) award of emotional distress damages to a housing discrimination complainant violated the California Constitution's judicial powers clause (Cal. Const., art. VI, § 1). [1] In this case, we decide whether Walnut Creek Manor prohibits such an award under these facts, and whether subsequent amendments to the California Fair Employment and Housing Act (FEHA) (Gov.Code, [2] § 12900 et seq.) have eliminated the constitutional concerns we identified in our 1991 decision. Contrary to the Court of Appeal below, we conclude that Walnut Creek Manor is distinguishable, and that the amendments, in particular the judicial option provision (§ 12989), remedy separation of powers concerns over the Commission's authority to award emotional distress damages. (§ 12987, subd. (a)(4).) Thus, we reverse the Court of Appeal's judgment.

The facts are largely taken from the Court of Appeal's opinion.

Sheryl Annette McCoy, an African-American police officer, inquired about renting a unit…