Judge: James C. Chalfant, Case: 23STCP03040, Date: 2025-01-07 Tentative Ruling

Case Number: 23STCP03040    Hearing Date: January 7, 2025    Dept: 85

A finding of misconduct is not alone enough to revoke a credential.  Instead, that misconduct must render the teacher unfit to teach.  San Dieguito Union High School District v. Commission on Professional Competence, (“San Dieguito”) (1982) 135 Cal.App.3d 278, 288.  The conclusion of unfitness must be based upon an objective standard such as that articulated in Morrison, supra, 1 Cal.3d at 220.  See also San Dieguito, supra, 135 Cal.App.3d at 288.

In Morrison, the California Supreme Court articulated factors to consider in whether a credentialed employee’s misconduct renders him unfit for service as a teacher: (a) likelihood that the conduct at issue may have adversely affected students/fellow teachers; (b) degree of such adversity anticipated; (c) proximity or remoteness in time of the conduct; (d) type of teaching certificate held by the party involved; (e) extenuating or aggravating circumstances, if any, surrounding the conduct; (f) likelihood of recurrence of the questioned conduct; (g) praiseworthiness or blameworthiness of motives resulting in the conduct; (h) extent to which disciplinary action may inflict an adverse impact or chilling effect upon constitutional rights of the teacher involved or other teachers.  Id. at 229-30.  Not every Morrison factor must be considered; a trier of fact may consider all the factors that are relevant to the respective case.  Ibid; West Valley-Mission College v. Concepcion, (1993) 16 Cal.App.4th 1766.

The Commission has adopted factors similar to Morrison in 5 CCR section 80302(a).

C. Motion to Compel Compliance

Once a judgment has been entered, the trial court loses its unrestricted power to change the judgment.  Graven v. Crout, (1985) 163 Cal.App.3d 779, 782. 

A court issuing a writ of mandate retains jurisdiction to make any order necessary to its enforcement.  CCP §§ 1097, 1105; County of lnyo v. City of Los Angeles, (1977) 71 Cal.App.3d 185, 205; see also, Professional Engineers in Cal. Govt. v. State Personnel Bd., (1980) 114 Cal.App.3d 101, 109.  This authority is codified in CCP section 1097, which provides in part that when a peremptory writ has issued and is disobeyed, the court “may make any orders necessary and proper for the complete enforcement of the writ.”  This enforcement power is also an inherent power of the court.  Kings v. Woods, (1983) 144 Cal. App.3d 571, 578.  Thus, where the writ remands the matter to an agency with directions to proceed in a certain manner, and the agency’s return states that the court’s mandate has been carried out, a petitioner may challenge the validity of that claim.  CCP §1097. 

 “Where…the writ remands the matter...and the return states that the court’s mandate has been carried out, the petitioner may challenge the validity of that claim” by a new petition, a supplemental petition, or a motion to compel compliance.  City of Carmel-by-The-Sea v. Board of Supervisors, (“Carmel-by-the-Sea”) (1982) 137 Cal.App.3d 964, 971.  The motion for leave to file a supplemental petition may be either oral or written.  Id.  A supplemental petition is permitted in mandamus only after the mandated party has filed a return advising the court and parties of its compliance.  Pollak v. State Personnel Board, (2001) 88 Cal.App.4^th 1394-95 (supplemental petition challenged board’s order for reduced penalty imposed after remand); Carmel-by-The-Sea, supra, 137 Cal.App.3d at 971 (petition may challenge a return in several ways, including a supplemental petition); Kensington University v. Council for Private Postsecondary, etc. Education, (“Kensington”) (1997) 62 Cal.App.4^th 27, 39 (supplemental petition considered only after administrative body’s final decision). 

The court’s review of a return is limited to determining whether the agency cured the deficiencies identified in the writ.  Nat’l Parks & Conservation Ass’n v. County of Riverside, (1999) 71 Cal.App.4^th 1341, 1351-52.  The court must resolve any doubts in favor of the agency’s finding and decision.  Id.  The failure to challenge the scope of writ arising from facts in existence before judgment precludes a challenge in post-judgment proceedings concerning compliance with the writ.  Ballona Wetlands Land Trust v. City of Los Angeles, (“Ballona Wetlands”) (2011) 201 Cal.App.4^th 455, 481.  To conclude that a petitioner may challenge anything other than the return’s compliance with the judgment and writ would raise serious issues about the judgment’s finality and scope of the writ.  See Graven v. Crout, supra, 163 Cal.App.3d at 782; Ballona Wetlands, supra, 201 Cal.App.4^th at 481.  The court may not consider any newly asserted challenges arising from the same material facts in existence at the time of the prior judgment because consideration of those issues that were, or could have been, raised in the litigation leading to the return.  See Town of Atherton v. Cal. High-Speed Rail Auth., (2014) 228 Cal.App.4^th 314, 354 (holding that petitioner’s argument in second lawsuit regarding validity of alternatives analysis in a revised EIR was barred by collateral estoppel because the court had already rejected petitioner’s same argument in the first case).

D. Analysis

Petitioner Sorensen moves to compel compliance with the court’s Writ directing the Commission to set aside and reconsider its decision revoking his credential in a manner that lies within its discretion.[2]  

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.  Lake v. Civil Service Commission, (“Lake”) (1975) 47 Cal.App.3d 224, 228.  Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.  Nightingale v. State Personnel Board, (“Nightingale”) (1972) 7 Cal.3d 507, 515.  The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions.  Cadilla v. Board of Medical Examiners, (“Cadilla”) (1972) 26 Cal.App.3d 961.

1. The Court’s Decision

The court’s decision, which is attached to the Judgment, addressed whether the Morrison factors implemented by 5 CCR section 80302(a) support revocation of Sorensen’s credentials.  The Commission considers only those factors most pertinent to the fitness inquiry (West Valley-Mission Community College District v. Concepcion, (1993) 16 Cal.App.4th 1766, 1777), and not all eight Morrison factors need be examined (Governing Bd. of ABC Unified Sch. Dist. v. Haar, (1994) 28 Cal.App.4th 369, 384).

a. The Likelihood that the Conduct May Have Adversely Affected Students/Teachers

This factor includes actual adverse impacts as well as the likelihood that the teacher's conduct may have adversely affected students and other teachers.  Broney v. California Commission on Teacher Credentialing, (“Broney”) (2010) 184 Cal.App.4th 462, 477.

The Commission found that Sorensen's conduct towards G.S. "did in fact adversely affect G.S. as she struggled to learn while in respondent's class."  She became so uncomfortable that she requested to transfer from his class.  AR 69.  She had to re-start her studies mid-year with a new teacher, learn new classroom procedures, and catch up to where the other students were.  AR 69.  Other staff and administrators were told about his behavior and had to take actions to protect G.S., which was undoubtedly unpleasant.   The teacher who had to instruct G.S. for the remainder of the year also was affected.  AR 69.

The Commission also found a substantial likelihood of adverse effects.  Students who learned of the misconduct would "likely lose their ability to respect and learn" from Sorensen.  Other teachers would have to deal with rumors about Sorensen and struggle to interact with him after doing so.  AR 69.  It further is likely that they would have to deal with parents who learned that a teacher had been reported behaving so inappropriately.  AR 69.  It is reasonable to conclude that these likely effects actually were felt at Golden Valley.  The rumors heard by G.S. about Sorensen before she started in his class show that rumors of his misconduct did circulate.  AR 70.  While calling a student “Princess” did not have any likely adverse effect, there was a likelihood of adverse effects from Sorensen’s misdemeanor convictions if students learned about them because they teach disobedience to authority.  AR 70.

The court agreed with the Commission’s opposition that the Commission was entitled under Broney to consider likely impacts as well as actual impacts.  The video is something that Golden Valley students, teachers, and parents likely would hear about, and the rumors G.S. did hear about Sorensen before she started in his class show that rumors pass easily at the school. 

However, the court agreed with Sorensen that his 1996 misdemeanor traffic convictions have no bearing on this Morrison factor; the Commission’s finding of a likelihood of adverse effects if students learned about them was pure speculation.

b. Proximity or Remoteness of the Conduct

The Commission noted that Sorensen’s misconduct at Golden Valley occurred during the 2018–2019 and 2019–2020 school years and the period of three years from the misconduct is not considered remote for purposes of this Morrison factor.  AR 70.  The Commission acknowledged that Sorensen’s misdemeanor convictions were remote and carried little weight.  AR 71.

c. Type of Teaching Certificate Held

The Commission found that Sorensen held a Single Subject Teaching Credential that authorized him to teach students up to grade 12.  Although he did not teach elementary or middle school students, that credential allows him to do so.  Broney held that the impressionable nature of elementary school students, and their need for role models, weighs in favor of finding unfitness to teach.  184 Cal.App.4^th at 477.  Even though high school students may not be as impressionable, the damage is significant when an authority figure and role model asks a student to perform a sexual dance and shows her an inappropriate video.  AR 71.  The Commission also found that referring to a female student as "Princess" and Sorensen’s misdemeanor convictions do not set a good example, even for this age group.  AR 71.

The court agreed with Sorensen that the Commission misapplied Broney.  The Commission disregarded the evidence in suggesting that Sorensen could in theory teach elementary students.  Sorensen taught high school students only and never taught elementary students. AR 71. The Commission must rule on the facts and this factor could be given no weight.

d. Extenuating or Aggravating Circumstances

An “aggravating factor” is defined in section 80300(b) as “an event or circumstance which demonstrates that a greater degree of adverse action for an act of unprofessional misconduct is needed to adequately protect the public, schoolchildren, or the profession.” AR 71-72.

The Commission found that Sorensen committed multiple acts of wrongdoing that demonstrate a pattern of misconduct.  AR 72.  Each act of misconduct resulted from his failure to exercise proper judgment and proper boundaries.   AR 72.  He regularly misused class time, behaved in an overly familiar fashion, and contacted G.S. outside class.  His decision to organize a sexual dance for the baseball team and to show an inappropriate video was the culmination of a pattern of poor judgment.  AR 27.  The misdemeanor convictions demonstrate that his poor judgment is a pattern and not a recent lapse of judgment.  AR 72.

The misconduct significantly harmed G.S., a student entrusted in his care, and significantly harmed the educational system and violated the trust placed in Sorensen as a teacher when he singled G.S. out for focused attention, asked her to organize a sexual dance for the baseball team and showed G.S. an inappropriate video.  AR 73.  The misconduct negatively affected G.S.'s education and impacted the educational system and public trust.  AR 72.

Further, Sorensen demonstrated indifference to his conduct when he denied asking G.S. to organize a sexual dance or showing her an inappropriate video.  AR 73.  Sorensen lacked candor when he admitted asking G.S. personal questions and to perform a dance but claimed he did not notice when she transferred out of his class mid-year.  AR 73.  He did not testify that he recognized any impact of his actions on his students.  AR 73.

With the exception of his lack of remorse, the court agreed with Sorensen that these are not aggravating factors.  Rather, his misuse of class time, personal interactions with students, and contacting G.S. outside of class time are simply the circumstances of misconduct that singularly would not even be the subject of discipline.  The fact that they show a pattern is not an aggravating circumstance, it is the misconduct itself.  Sorensen’s traffic violations from 1996 (when he was 18 years old) are not evidence of a pattern of poor judgment either.  As Sorensen argued, the misdemeanor convictions have no impact on his fitness to teach in light of his 20 years of teaching. 

The Commission also erred in not considering an important mitigating circumstance.  The decision repeatedly concludes that Sorensen asked G.S. to organize a sexual dance and showed her an inappropriate sexual video.  In reaching this conclusion, the Commission relied solely on G.S.’s testimony that the video was highly inappropriate and “egregious” and apparently never saw the video itself.  AR. 76.

Sorensen argued that the Commission fails to cite anything in the record which accurately characterizes the contents of the video.  Sorensen testified that the video was a baseball skit played to the song “Hey, Batter, Batter” from the Disney channel, either “Glee” or “High School Musical.”  RT Vol. III, p. 155.  The video is on YouTube and Sorensen offered to show it to the ALH, who declined to watch it.  RT Vol. III, p. 157. Thus, the Commission based its conclusion to revoke Sorensen’s credentials in major part based on evidence that neither the ALJ nor the Commission ever saw. 

This case has been presented to the court as a matter in which Sorensen is guilty of unprofessional conduct based in part on the video involving “twerking” and “stripper moves” which made G.S. uncomfortable.  AR 58.   He also was found guilty of immoral acts and acts of moral turpitude based solely on showing of the video.  AR 64, 67.  Yet, no one saw this video except G.S.  While G.S. was credible, her subjective discomfort at viewing it may not have been objectively reasonable.  As Supreme Court Justice Stewart Potter famously said about obscenity: “I’ll know it when I see it.”  The court strongly believes that the ALJ and Commission should not have taken G.S.’s word that the video was highly inappropriate.  Sorensen remains guilty of the charges, but the Commission’s failure to verify that the video was the “sexual dance” with “stripper” movements as described by the Commission (AR 72) is a compelling mitigating factor.

It is true that Sorensen tried to hide the dance request from G.S.’s dance supervisor, and that fact indicates that it was inappropriate.  That does not mean, however, that he tried to hide the video.  He showed G.S. the video after suggesting that they keep the request between themselves.  Nor does it mean that the video was a sexual dance as opposed to part of a request that he knew he should not be making.  This fact does not undermine mitigating fact that no one saw the video.

e. Likelihood of Recurrence

The Commission found that Sorensen did not express any remorse and instead claimed that the charges against him were due to retaliation by a disgruntled student and former assistant coach.  AR 74. Sorensen’s failure to "fully appreciate the nature and consequences of his actions, [creates] an elevated likelihood of recurrence exists."   AR 74.

The court agreed with the Commission’s opposition that the remorse of a credential holder is a mitigating factor "which demonstrates that the public, schoolchildren and the profession would be adequately protected by a more lenient degree of adverse action or no adverse action whatsoever…."  5 CCR §80300(m)(5).  Conversely, a lack of remorse shows that the accused has not learned from his actions and is prone to recurrence of his misconduct.  See Opp. at 17.

f. Praiseworthiness or Blameworthiness of Motive

The Commission found that Sorensen alone is to blame for his failure to maintain proper boundaries with his students, especially G.S., and his commitment of criminal misdemeanors.  AR 72.

The court found that Morrison requires an assessment of “the praiseworthiness or blameworthiness of the motives resulting in the conduct.”  Morrison, supra, 1 Cal.3d at 229. Nowhere did the Commission explain why Sorensen’s motives are praiseworthy or blameworthy. The relevant factor is his motivation in asking G.S. to organize a “feminine dance” and showing her the dance video, which was to teach the freshmen baseball team a dance to perform for the varsity baseball team.  The Commission did not consider the proper factor, which may work in his favor because it did not occur for a selfish purpose.

g. Extent to Which Discipline May Chill Constitutional Rights of the Teacher or Other Teachers

The Commission found that "the outcome of this case will have no chilling effect on credentialed teachers exercising their constitutional rights."  AR 74.  The court agreed.

h. Publicity 

The Commission found that notoriety from misconduct can impair future on-campus relationships, citing San Diego Unified School District, (2011) 194 Cal.App.4^th 1454, 1463.  The Commission found -- and the court agreed – that there was no evidence of publicity that would have affected his relationships at Monterey or the charter school.  AR 75.

i. The Penalty

The Commission concluded, based on the Morrison factors, that Sorensen is unfit to teach.  It acknowledged that many allegations were unproven, but the evidence demonstrated an alarming pattern of lack of boundaries and poor judgment that harmed a student as well as a great likelihood of harming others.  AR 75.  Sorensen’s response was a self-serving denial and assertion that he was being retaliated against as a baseball coach.  AR 75.  His lack of remorse and his favorable letters of support and performance reviews do not alleviate this concern, particularly when he was not upfront with his employers or recommenders about the allegations of misconduct he faces in this case.  Therefore, revocation was necessary to protect the public.  AR 76. 

The court found serious reasons to doubt the Commission’s decision, which was full of conclusions and not many facts.  The Commission admitted that many allegations were unproved, and those that were proved were mostly based on generalities and almost totally on G.S.’s testimony.  The Commission accepted G.S.’s testimony that Sorensen would approach students in class multiple times in the same period, he asked a student to get him lunch during class time, and he asked a student to go check with players to see what they were bringing as potluck.  AR 58.  The Commission concluded that Sorensen had committed unprofessional conduct by approaching students in class to discuss personal matters, which interfered with education time.  AR 62.  This behavior evidenced overfamiliarity with students and failed to maintain professional boundaries with students.  AR 62. 

Although they were proved, the Commission could not seriously conclude that these allegations justify revocation of Sorensen’s right to teach.  Nor did the Commission believe that the misdemeanor convictions or using the term “Princess” had a strong bearing on the revocation issue.  AR 71.

This left the Commission’s conclusions about Sorensen’s request for G.S. to organize a dance for the baseball team and showing her a video involving “twerking” and “stripper moves” which made G.S. uncomfortable.  AR 58.  G.S. testified credibly and was corroborated by her prior consistent statements whereas Sorensen’s testimony about G.S. as a run of the mill student was not credible given that he admitted asking her to coordinate a dance for the baseball team.  AR 58-59.  Most seriously, when G.S. tried to redirect him by asking that he speak with the dance supervisor, he attempted to ensure her secrecy by telling her the matter should stay between them and the supervisor did not need to know about it.  He escalated this “wildly inappropriate interaction” by showing her a video which G.S. stated involved “twerking” and “stripper moves” which made G.S. uncomfortable and made it necessary for her to transfer classes mid-year.  AR 63.

The court concluded that there is much that is not known about this video, including its contents, whether G.S. was correct that it involved stripper moves and twerking, whether G.S. is naive or inordinately sensitive, and whether the video is objectively a sexual video.  If not, the Commission would be left with an incident in which Sorensen tried to get G.S. to organize dancing for the baseball team and hid that fact from the dance supervisor.  Should Sorensen’s credentials be revoked on that basis, or for the totality of evidence stated by the court?  The ALJ thought not, and only recommended a public reprimand.  In light of the unknown, the Commission’s decision to revoke was dubious.

Nonetheless, the court may not overturn a penalty unless there has been a manifest abuse of discretion (Lake, supra, 47 Cal.App.3d at 228), and cannot substitute its discretion for that of the agency on the degree of punishment.  Nightingale, supra, 7 Cal.3d at 515.  Most important, the policy importance of a properly considered video is a matter within the expertise of the Commission in determining penalty questions.  See Cadilla, supra, 26 Cal.App.3d at 961.

The court remanded the case to the Commission to take further action with respect to the Morrison analysis that properly considers the issues.

2. Analysis

Sorensen now challenges the Commission’s compliance with the court’s direction.  Sorensen argues that the Commission issued a new decision which still revoked his license based on the same facts without specifically mentioning any of the defects found by the court and contradicting it in multiple instances.  Mot. at 4. 

As the Commission notes, Sorensen challenges the Commission’s new decision, issued on or around October 21, 2024, for two of the Morrison factors: (1) the extenuating or aggravating circumstances and (2) the praiseworthiness or blameworthiness of motive.  Opp. at 3.

a. The Video

Sorensen notes that the Judgment expressly held that the Commission “erred in not considering an important mitigating circumstance” that it “never saw the video itself.”  RJN Ex. 2, pg. 15.[3]  He argues that the Commission’s new decision expressly contradicts the Judgment by finding instead that “the fact that the video at issue was not viewed at the hearing is not mitigating.” Tauler Decl., Ex. A, pg. 44, ¶56.  Mot. at 5.

The Judgment ordered the Commission to consider the fact that “[t]here is much that is not known about this video, including its contents, whether G.S. is correct that it involved stripper moves and twerking, whether G.S. is naive or inordinately sensitive, and whether the video is objectively a sexual video.”  RJN Ex. 2, p. 18.  Similarly, the Judgment indicated that the court “strongly believes that the ALJ and Commission should not have taken G.S.’s word that the video was highly inappropriate.”  RJN Ex. 2, p. 15. 

Sorensen argues that the Commission’s new decision does not address any of the court’s directives about how the Commission should assess the fact that no one ever saw the video that serves as the basis to revoke Sorensen’s ability to teach.  The new decision makes no assessment about the contents of the video in light of the factors the court ordered the Commission to consider, let alone the fact that the decision to revoke his credentials was based in major part on evidence that neither the ALJ nor the Commission ever saw.  The new decision contradicts the Judgment entirely in this central regard.  Mot. at 5.

Sorensen notes that the Commission argued in opposition to his ex parte application that the new decision is compliant with the Judgment because it is 16 pages longer than the decision.  RJN Ex. 3, p. 3.  Yet, a redline comparison of the two decisions demonstrates that the Commission made few substantive changes, and no changes expressly based on the court’s Judgment.  Tauler Decl., Ex. B.  The new decision adds pages of filler which is mostly the result of cutting and pasting of G.S.’s testimony from the ALJ’s trial relating to the video. Tauler Decl., Ex. A, p. 38, ¶49.  The Commission appears to repeat this direct copy and paste, with little to no variation, at least 12 separate times to justify its analysis of the Morrison factors.  Exs. A, B.  Mot. at 6.

Sorensen concludes that none of the additional testimony cut and pasted into the new decision follows the court’s direction for the Commission to take into account the fact that “[t]here is much that is not known about this video, including its contents, whether G.S. is correct that it involved stripper moves and twerking, whether G.S. is naive or inordinately sensitive, and whether the video is objectively a sexual video.”  RJN Ex. 2, p. 18.  The Commission’s new decision does not shed any light on these circumstances, only adding the phrase “very feminine” to describe the dance in the video 16 times (the decision used this term three times), repeatedly quoting the same testimony to give the illusion of careful deliberation.  Exs. A, B. Similarly, the new decision uses the term “inappropriate video” 17 times (the decision mentioned this term five times).  Exs. A, B.  The Commission then concludes that “[s]howing the video to G.S. was awful” (Ex. B, pg. 31, ¶31), without making any assessment about the contents of the video as directed by the court.  Mot. at 7.

The Commission responds that the court found error because the Commission did not consider the extent to which the failure to see the video should mitigate the discipline.  The Commission’s new decision made further, extensive factual findings concerning Sorensen’s dance request and sharing of the video with G.S.  The decision contained three paragraphs of factual findings whereas the new decision has eight paragraphs addressing this topic.  AR 49 (¶¶ 15–17); Ex. A, pp. 6–10 (¶¶ 17–24).  The Commission copiously cited to G.S.’s testimony in which she described the video’s contents.[4]  Per G.S.’s testimony, the video showed cheerleaders dancing for Sorensen’s baseball team at a school where he previously taught.  Ex. A, p. 8 (¶20).  G.S. described the cheerleaders as “‘dancing like, basically, strippers,’” and they “were bending over, dancing very feminine” with their butts” and “‘twerking’”.[5]  Ex. A, pp. 9–10 (¶¶ 21–22).  The expanded factual findings appear to show that the Commission did not take G.S.’s word that the video was inappropriate but instead reached this conclusion itself based on G.S.’s credible description of the video’s contents and its own expertise in such matters.  Opp. at 4. 

The Commission argues that it reevaluated this Morrison factor as follows:

“The fact that the video at issue was not viewed at the hearing is not mitigating. Both respondent and G.S., the only two persons present when respondent showed the video to G.S., were provided the opportunity to testify regarding the contents of the video. G.S. testified credibly and consistently with her earlier statements to her dance supervisor and the CTC investigator. Respondent testified inconsistently and evasively such that his statements regarding the contents of the video he showed to G.S. are not credible. Thus, the only credible testimony before the Commission regarding the contents of the video comes from G.S.

Additionally, complainant would have been unable to play the video at the hearing as the evidence demonstrates neither G.S. nor any other complainant witness had access to the video respondent showed G.S. The only party who could have played the purported video at hearing was respondent. However, any video he showed would have had to have been authenticated by his testimony, which, as discussed, is not credible. Consequently, the lack of a video in evidence is not considered in mitigation.”  Ex. A, pp. 44–45 (¶¶ 56–57).  Opp. at 4.

            The Commission’s opposition contends that it followed the Judgment in considering the extent to which the failure to view the video should have mitigated the penalty.  A “mitigating factor” is an “event or circumstance which demonstrates that the public, schoolchildren and the profession would be adequately protected by a more lenient degree of adverse action or no adverse action whatsoever.” (8 CCR §80300(m)).  Opp. at 5.

The Commission did not comply with the Writ.  Sorensen is correct (Reply at 1) that the Commission did not -- as it was ordered to do -- take into consideration the mitigating circumstance that neither it, nor the ALJ, saw the video.  Instead, the Commission concluded that the court’s decision was wrong by stating that “the fact that the video at issue was not viewed at the hearing is not mitigating.”  Ex. A, p. 44 (¶56).  This it cannot do.  As Sorensen argues, the court’s Judgment was not an idle suggestion.  It carries the weight of law and must be followed by its terms and its spirit.  Mot. at 5. 

The Commission failed to consider the fact that no one besides G.S. saw the video on which revocation principally was based.  As the court’s decision stated, Sorensen is guilty of unprofessional conduct based in part on the video involving “twerking” and “stripper moves” which made G.S. uncomfortable.  AR 58.   He also was found guilty of immoral acts and acts of moral turpitude based solely on showing of the video.  AR 64, 67.  Yet, no one saw this video except G.S.  While G.S. was credible, her subjective discomfort at viewing it may not have been objectively reasonable.  As Supreme Court Justice Stewart Potter famously said about obscenity: “I’ll know it when I see it.”  The court strongly believed that the ALJ and Commission should not have taken G.S.’s word that the video was highly inappropriate.  Sorensen remains guilty of the charges, but the Commission’s failure to verify that the video was the “sexual dance” with “stripper” movements as described by the Commission (AR 72) is a compelling mitigating factor.[6]

It is true that Sorensen tried to hide the dance request from G.S.’s dance supervisor, and that fact indicates that the request was inappropriate.  That does not mean, however, that he tried to hide the video.  He showed G.S. the video after suggesting that they keep the request between themselves.  Indeed, G.S.’s testimony cited by the Commission shows that Sorensen used the video at another school.  Ex. A, p. 8.  Yet, there is no evidence that anyone at his other school complained about the video as inappropriate.

The Commission failed to consider the mitigating fact that the video was only subjectively inappropriate and not necessarily objectively so.[7]

b. The Traffic Convictions

Sorensen argues that the Commission’s new decision directly contradicts the Judgment’s holding that Sorensen’s traffic violations from 1996 (when he was 18 years old) are “not evidence of a pattern of poor judgment […]” and as such are not an extenuating or aggravating circumstance.  RJN Ex. 2, p. 15.  The new decision improperly includes these misdemeanor convictions as an aggravating factor despite the court’s explicit instruction to exclude them.  Ex. A, p. 40, ¶54.  Mot. at 6.

The Commission’s opposition argues that its new decision does not rely on Sorensen’s convictions as evidencing a pattern of misconduct involving poor judgment but rather as multiple acts of wrongdoing.  Compare Ex. A, p. 40 (¶54(a)) and AR 72 (¶47(a)).  The court’s judgment narrowly decided that the convictions did not evidence a pattern of misconduct involving poor judgment and said nothing about them as multiple acts of wrongdoing. Thus, the Commission complied with the court’s judgment.  Opp. at 5-6.

Sorensen replies that the Commission’s opposition ignores the fact that the new decision uses these 1996 convictions in its “pattern of misconduct” section as an aggravating factor.  Ex. A, p. 40 (¶54).  The Commission’s argument is misleading at best – dishonest at worst.  Reply at 2.

Whether the Commission complied with the Judgment by labeling the prior convictions as multiple acts of wrongdoing instead of demonstrating a pattern of poor judgment is of little moment.  The fact is these ancient traffic convictions have virtually no bearing on Sorensen’s fitness to teach.

c. Lack of Blameworthy Motive

Sorensen argues that the Commission failed to adequately address the court’s directive that a lack of selfish purpose could mitigate blameworthiness.  Instead, the Commission revised its analysis to ultimately conclude blameworthy intent, disregarding the court’s indication that this factor could potentially favor him.  Ex. A, pgs. 45-46, ¶ 59.   Mot. at 6.

The Commission responds that the court observed that Sorensen’s motivation for asking G.S. to organize the dance and for showing her the dance video is a proper factor to consider.  The Commission’s new decision did consider whether Sorensen’s motives were praiseworthy or blameworthy:

“The motives behind [Sorensen’s] misconduct involve varying levels of blameworthiness. The requests for G.S. or another student to get petitioner lunch or to organize a baseball potluck demonstrate self-serving motives as they involve [petitioner] asking a student to do something he would otherwise have to handle himself. Inferably, [Sorensen’s] motives behind repeatedly approaching G.S. during class time were self-serving given that G.S. explained it was not to assist her with schoolwork, was of a personal nature, and was not sought or welcomed by G.S. No one else had anything to gain from [Sorensen’s] personal contacts with G.S. The motive behind petitioner calling a student princess is unclear, but there is no evidence it was praiseworthy. [Sorensen’s] motives behind his criminal convictions are inferably blameworthy, as they involve violations of law, including failure to appear in court.  

“It is a reasonable inference that [petitioner] had a blameworthy motive in asking G.S. that she and other girls from her dance team perform a dance for the baseball team like his inappropriate video where the girls ‘were—dancing like, basically strippers. They were bending over, dancing very feminine, but in an inappropriate way,’ ‘bending over ... [w]ith their butts," and ‘twerking.’ Perhaps, he intended to benefit the baseball team or perhaps he wanted accolades from his team for orchestrating such a performance for them.  Nevertheless, either motive is blameworthy as such an inappropriate video, dance request, and dance itself objectify the female students, and demonstrate for the young baseball players that such is appropriate. Further, [Sorensen’s] attempt at secrecy demonstrates that his motive was blameworthy. Had he harbored a praiseworthy motive, he would not have felt it necessary to tell G.S. ‘that it should just stay between [G.S.] and him.’ Rather, in making the secrecy request of G.S., [petitioner’s] blameworthy motive was to hide his misconduct from another adult. Therefore, this factor weighs against [Sorensen’s] fitness.”  Ex. A, pp. 45-46 (¶¶ 58-59) (citations omitted and emphasis added).

            The Commission argues that Sorensen fails to state how this analysis is inadequate.  To be sure, the Commission considered various plausible motives for Sorensen’s misconduct—e.g., he may have intended to benefit the baseball team or may have wanted accolades from the team for organizing the dance and found neither of these motives praiseworthy; rather, they both were blameworthy.  Opp. at 8.

            The court accepts the Commission’s conclusion that Sorensen’s motives behind repeatedly approaching G.S. during class time were self-serving.  However, the new decision confuses wrongdoing with motive with respect to the dance request, inappropriate video, and dance itself in concluding that it objectifies the female students and suggests to the young baseball players that such is appropriate.  This is a conclusion about misconduct, not motive.  Sorensen’s attempt at secrecy shows guilty knowledge, but it does not show a blameworthy motive. 

            No conclusion can be drawn about whether Sorensen’s motives were blameworthy.

            E. Conclusion

It is clear after remand that the Commission revoked Sorensen’s credentials based on a secret dance request and a video.  The court found serious reasons to doubt the Commission’s decision, which was full of conclusions and not many facts, and that remains true.  The Commission admitted that many allegations were unproved, and those that were proved were mostly based on generalities and almost totally on G.S.’s testimony. 

The Commission accepted G.S.’s testimony that Sorensen would approach students in class multiple times in the same period, he asked a student to get him lunch during class time, and he asked a student to go check with players to see what they were bringing as potluck.  AR 58.  The Commission concluded that Sorensen had committed unprofessional conduct by approaching students in class to discuss personal matters, which interfered with education time.  AR 62.  This behavior evidenced overfamiliarity with students and failed to maintain professional boundaries with students.  AR 62.  Although they were proved, the Commission could not seriously conclude that these allegations justify revocation of Sorensen’s right to teach.  Nor did the Commission believe that the misdemeanor convictions or using the term “Princess” had a strong bearing on the revocation issue.  AR 71.

This left the Commission’s conclusions about Sorensen’s request for G.S. to organize a dance for the baseball team and showing her a video involving “twerking” and “stripper moves” which made G.S. uncomfortable.  AR 58.  The court concluded that there is much that is not known about this video, including its contents, whether G.S. was correct that it involved stripper moves and twerking, whether G.S. is naive or inordinately sensitive, and whether the video is objectively a sexual video.  If not, the Commission would be left with an incident in which Sorensen tried to get G.S. to organize dancing for the baseball team and hid that fact from the dance supervisor.  Should Sorensen’s credentials be revoked on that basis, or for the totality of evidence stated by the court?  The ALJ thought not, and only recommended a public reprimand.  In light of the unknown, the Commission’s decision to revoke was dubious.

Nonetheless, the court noted that it may not overturn a penalty unless there has been a manifest abuse of discretion (Lake, supra, 47 Cal.App.3d at 228), and cannot substitute its discretion for that of the agency on the degree of punishment.  Nightingale, supra, 7 Cal.3d at 515.  Most important, the policy importance of a properly considered video is a matter within the expertise of the Commission in determining penalty questions.  See Cadilla, supra, 26 Cal.App.3d at 961.  The court remanded the case to the Commission to take further action with respect to the Morrison analysis that properly considers the issues.

            The Commission’s new decision does not comply with the Writ because it fails to address the strongly mitigating fact that no decision-maker can verify that the video was objectively offensive.  There is no basis to revoke on other grounds.  The Commission cannot reach a conclusion that the video was “wildly inappropriate” based solely on G.S.’s testimony that the cheerleaders in the video were “‘dancing like, basically, strippers,’” and “bending over, dancing very feminine” with their butts” and “‘twerking’”.  Ex. A, pp. 9–10 (¶¶ 21–22). 

            This is not a circumstance in which the court is intruding on the “the policy importance of a properly considered video” as the Commission argues.  See Cadilla, supra, 26 Cal.App.3d at 961. If the video were objectively inappropriate – based either on a decision-maker’s viewing or more detailed testimony by G.S. -- the Commission would be within its discretion to revoke on the basis that the public, schoolchildren and the profession would not be adequately protected by a more lenient degree of adverse action than revocation of Sorensen’s credentials.  Opp. at 5.  But neither circumstance exists here. 

            The motion is granted.  The court will discuss with counsel whether to remand to the Commission for a third consideration of the revocation penalty or direct the Commission to set aside its revocation of Sorensen’s credentials and impose such lesser penalty as exists within its discretion.