-5-
statutory rights”. See Kidd v. State, 72 Cal. Rptr. 2d 758, 773
(Cal. App. 1998). The court of appeals rejected as part of any
equitable remedy that the defendants be ordered to discharge from
employment those individuals who were hired pursuant to the
supplemental certification. The court of appeal rested its
decision on its interpretation of the California Constitution and
California Government Code and declined to decide the plaintiffs’
claim under the U.S. Constitution.
Upon remand, counsel for the parties to the lawsuit met on a
few instances in the presiding Judge’s chambers to discuss
settlement of the lawsuit and, more particularly, the specific
equitable remedy to which the plaintiffs were entitled under the
directive of the court of appeal. During their discussions, the
parties to the lawsuit disputed the form of that remedy in that
neither plaintiff still wanted the civil service position for
which he had applied, and, even if he did, the results of his
prior competitive examination were too old to qualify him for
that position. The parties’ counsel discussed settling the
equitable remedy award through a monetary payment but this was
problematic in that Swiden had suffered an economic loss from the
defendants’ violation of his rights but Kidd had not; Kidd had
earned more money during the relevant period than he would have
earned had he been employed in the civil service position for
which he had applied. The defendants made a settlement proposal
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