DI GENOVA v. STATE BOARD OF EDUCATION

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District Court of Appeal, First District, Division 1, California.

Anthony DI GENOVA, Petitioner and Respondent, v. STATE BOARD OF EDUCATION, William L. Blair, Wilber D. Simons, Thomas J. Mellon, Mrs. E. T. Hale, Gilbert H. Jertberg, Joseph P. Loeb, Mrs. Margaret H. Strong, Byron H. Atkinson, Mrs. W. J. Parks and Max J. Osslo, as members constituting the State Board of Education; Roy E. Simpson, Superintendent of Public Instruction and Ex Officio Director of Education of the State of California; Roy E. Simpson, James C. Stone, Jay Davis Conner, Frank M. Wright, Wesley P. Smith and J. Burton Vasche, as Commissioners constituting the Commission of Credentials of the State Board of Education; Herbert Clish, as Superintendent of Schools of the Unified School District of the City and County of San Francisco, State of California; Bert W. Levit, Charles J. Foehn, Mrs. Nell E. Hinckley, Joseph L. Alioto, John G. Levison, Mrs. Clarence Coonan and Charles C. Trowbridge, Jr., as Commissioners constituting the Board of Education of the City and County of San Francisco, State of California, Defendants and Appellants.

Civ. 16261.

Decided: May 18, 1955

Edmund G. Brown, Atty. Gen., Richard H. Perry, Deputy Atty. Gen., Dion R. Holm, City Atty., City and County of San Francisco, San Francisco, Irving G. Breyer, San Francisco, of counsel, for appellants. Walter H. Duane, San Francisco, for respondent.

Petitioner Di Genova held elementary and secondary school credentials issued by the state and had acquired permanent tenure as a teacher in the employ of the defendant school district when the State Board of Education, without giving him a hearing, revoked those credentials upon the ground, assertedly, that he had been convicted of a sex offense as defined in section 12011.7 of the Education Code. Thereupon the local school board discontinued his services as a teacher. The trial court found that the defendant boards acted without jurisdiction and issued a writ of mandamus for reinstatement of Di Genova's credentials, restoration of his teaching position, payment of his salary since separation, and reimbursement of his costs of suit. The state and local boards and officers have appealed.

The main question is whether section 12756 of the Education Code, in the types of cases to which it applies, sanctions the revocation of a permanent tenure teacher's state credentials without a hearing.

It is a question of legislative intent, not of legislative competency. ‘In California * * * the legislature still has plenary power over teacher tenure, there being no constitutional provisions in any way limiting that power.’ Taylor v. Board of Education, 31 Cal.App.2d 734, 744, 89 P.2d 148, 153. See also Phelps v. Prussia, 60 Cal.App.2d 732, 741–743, 141 P.2d 440, and Ed.Code, § 13007.

Section 12756 declares that ‘Whenever the holder of any credential * * * issued by the State Board * * * has been convicted of any sex offense as defined in Section 12011.7, the State Board * * * shall forthwith suspend the credential * * *. If the conviction is reversed and the holder is acquitted * * * in a new trial or the charges * * * are dismissed, the board shall forthwith terminate the suspension of the credential * * *. When the conviction becomes final or when imposition of sentence is suspended the board shall forthwith revoke the credential * * *.’

Here there is no express provision for notice and a hearing. Is one implied? Yes, if the ‘statute contemplates a quasi judicial determination by the administrative agency that there be cause for the revocation’. In such a case the statute should be ‘interpreted to require a hearing.’ Fascination, Inc., v. Hoover, 39 Cal.2d 260, 271, 246 P.2d 656, 662. ‘We should not imply legislative intent to deprive a person of his license without a prior opportunity to be heard unless compelled to do so by the plain language of the statute * * *.’ Ratliff v. Lampton, 32 Cal.2d 226, 230, 195 P.2d 792, 795, 10 A.L.R.2d 826.

But, say the appellants, there is no ‘quasi judicial determination’ to be made by the board under this statute: Section 12011.7 designates the particular code sections whose violation is cause for suspension or revocation; section 12756 states precisely what events, in a prosecution for violation of any of those code sections, call for suspension, termination of suspension, or revocation of teaching credentials; section 12011.5 defines ‘conviction’; and section 12012 makes the judicial record sufficient evidence of conviction. Appellants would have us conclude therefrom that state board action in such a case is but a pro forma matter, that it partakes of the quality of a ministerial act, does not rise to the level of a quasi judicial act. We are not persuaded.

Among the offenses defined by section 12011.7 is ‘any offense committed or attempted in any other state which, if committed or attempted in this State, would have been punishable as one or more of the above-mentioned offenses.’ It might not be a simple matter in a given case to apply this formula. The determination might be highly judicial in character.

Some of the offenses are defined in terms of the manner of their commission by reference to subdivisions of a code section; e. g., subdivision 3 or 4 of section 261, and subdivision 1 or 2 of section 311 of the Penal Code. Suppose a person is charged, in general terms, of a violation of section 261. This seems possible under sections 950–952 of the Penal Code (see People v. Beesly, 119 Cal.App. 82, 6 P.2d 114, 970, and cases collected in 22 Cal.Jur. 371–373, § 19) at least in the absence of a challenge by the defendant. In such a case the question whether there was a violation of subdivision 3 or 4 of section 261 might not appear from an inspection merely of the records kept by the clerk of the court. Likewise, a record of conviction of violation subdivision 5 of section 647 might not be specific enough for ready determination unless it also showed conviction of being a ‘lewd’ person as distinguished from a merely ‘idle’ or ‘dissolute’ person or an ‘associate of known thieves'. All of them are included in subd. 5 but less than all are within the scope of the title of the statute that added section 12011.7 to the code, ‘An act * * * relating to persons convicted of sex offenses'. Stats.1952, 1st Ex.Session, ch. 25, p. 389; emphasis added.

The question whether a given conviction has become final or has resulted in acquittal or dismissal upon or after new trial or appeal may upon occasion entail an extensive search and the exercise of a degree of judgment that renders it no mere pro forma affair.

Then, too, the question of identity is very important, especially to the person immediately concerned. Is the person named in the record of conviction the very person whose credentials the board proposes to suspend or revoke?

We think the function here involved brings this statute within the purview of the rule that we should ‘not imply legislative intent to deprive a person of his license without a prior opportunity to be heard unless compelled to do so by the plain language of the statute, regardless of whether there is a right to an administrative review after revocation.’ Ratliff v. Lampton, supra, 32 Cal.2d 226, 230, 195 P.2d 792, 795.

Appellants contend, in effect, that the frequent use of the word ‘forthwith’ in section 12756 is compelling language that demonstrates such an intent. That is attaching too much significance to ‘forthwith.’ ‘There is no precise definition, so far as time is concerned, of the words ‘forthwith’ and ‘immediately.’ In every case the meaning depends upon the circumstances of the case and the act to be performed.' Lewis v. Curry, 156 Cal. 93, 101, 103 P. 493, 496. It has been construed to mean ‘within a reasonable time’, United States v. Bell, D.C., 48 F.Supp. 986, 987, 989; Dockter v. Sheridan County, 72 N.D. 607, 10 N.W.2d 485, 489, and “as expeditiously as under the circumstances is reasonably possible.” Williams v. Continental Securities Corporation, 22 Wash.2d 1, 153 P.2d 847, 853. In that sense it has been used in this statute, not in the sense of dispensing with normal notice and hearing requirements.

But, it is argued, we have in section 12756 something more than a mere absence of an express requirement for a hearing. The Legislature has put it into an article which expressly provides for a hearing for certain types of suspensions and revocations (see §§ 12751–12753) but not for certain others (see § 12755), that the latter are of the same type (conviction of violation of certain designated code sections), as those with which section 12756 deals; hence, it is reasonable to infer that the Legislature likewise intended no hearing under section 12756. That assumes too much. It is certain that no hearing is required for a revocation under section 12755? Express requirement of a hearing to remove a board member and the omission of such a requirement for suspension or revocation of a trainer's license (in the California Horse Racing Act), was not deemed indicative of a legislative intent to dispense with a hearing in the latter situation. Carroll v. California Horse Racing Bd., 16 Cal.2d 164, 105 P.2d 110. Moreover, the legislative history of the article in which section 12755 occurs gives added support to the rule applied in the Carroll case. At one time hearings in accordance with the provisions of the Administrative Procedure Act were expressly required for any proceeding conducted under the article in which section 12755 occurs. § 12752 as amended by Stats.1945, ch. 871, p. 1641. In 1949, section 12752.1 was added and section 12752 amended to narrow that requirement down to administrative hearings conducted under sections 12751 and 12752. Stats.1949, ch. 1168, p. 2088. It is a fair inference that the Legislature intended thereby to sanction for a section 12755 proceeding a hearing less formal than that prescribed by the Administrative Procedure Act, but nevertheless a hearing, not the abolition of every vestige of notice and hearing as appellants would infer.

A look at the 1952 chapter which added section 12756 to the code suggests that when considering and enacting into law the bill which became that chapter, ch. 25, Stats.1952, 1st Ex.Sess., p. 389, the Legislature was not considering the question of hearing or no hearing, notice or no notice, did not have its attention directed to the question whether on this subject of revocation for sex offenses there should be any departure from the customary and time honored requirements for notice and hearing. That chapter did not deal with that subject. It defined ‘sex offenses', § 12011.7, dealt with proof of conviction, § 12011.5, and then issued mandates to the state board, §§ 12107 and 12756, to county boards, § 12785, and to school district boards, §§ 13001.3 and 14002.3, concerning sex offenders.

Especially significant is the fact that § 12785 (a facsimile of § 12756 except that it applies to county boards and county certificates instead of the state board and state credentials) was put into an article, art. 2, ch. 6, div. 7, §§ 12776–12785, Ed.Code, which contains a declaration that ‘No [county] certificate shall be revoked or suspended, except upon the written request of its holder, until after a hearing before the county board of education, and then only upon the affirmative vote of at least four members of the board.’ § 12777. What clearer indication could there be that in enacting chapter 25 of the First Extraordinary Session of 1952 the Legislature harbored no intent to dispense with those elements of notice and hearing that are normally expected and required?

Moreover, the 1952 chapter contained affirmative evidence of an intent not to dispense with notice and hearing requirements when a permanent employee is involved. Although it declared that school district boards shall not ‘retain in employment’ persons who have been convicted of any offense as defined (§ 13001.3 relating to certificated employees), it utilized the existing procedure for dismissal of a permanent tenure certificated employee who is convicted of any of the designated sex crimes. This it did by the following clause of section 12011.5: ‘The record of such conviction of a sex offense as defined in Section 12011.7 shall be sufficient proof of conviction of a crime involving moral turpitude for the purposes of Article 2 of Chapter 11 of Division 7 [§§ 13521–13560] of this code, relating to the dismissal of permanent employees.’ In other words, each of the crimes defined as a ‘sex crime’ in section 12011.7 is a ‘crime involving moral turpitude’ as the latter term is used in section 13521, and the dismissal hearing procedure applicable to the latter is applicable to a sex offender who is a permanent tenure employee.

There is yet more in the history of this legislation that supports the view that notice and hearing are required, especially when the credential is held by a teacher who has acquired permanent tenure. Such a person has a valuable right of being continued in his employment, a right which the mere holder of a credential not yet employed, has not acquired. See Fresno City High School Dist. v. De Caristo, 33 Cal.App.2d 666, 672, 92 P.2d 668. In 1943 this court, after a careful analysis of the pertinent statutory law, concluded that it was ‘the legislative intent that no teacher and especially one holding permanent tenure should be deprived of his credential to teach in any of the public schools in this state without some sort of charges being filed against him, and without being afforded the right of trial thereon, so that he may defend himself against such charges.’ Matteson v. State Bd. of Education, 57 Cal.App.2d 991, 998, 136 P.2d 120, 124; a petition for a hearing by the Supreme Court was denied. The court was there concerned with a case arising under sections 5.381 and 5.382 of the School Code (now §§ 12752 and 12753 of the Education Code), a denial for cause of an application for the renewal of state credentials. The court concluded that such action was upon a par with suspension or revocation and that when the credential holder had acquired permanent tenure action against him could not be taken without the filing of charges and a hearing thereon.

The rationale of that decision logically embraced a revocation under section 5.384 (now § 12755, Ed.Code), which, though not expressly mentioned in the opinion, occurred in the same article of the School Code as sections 5.381 and 5.382 and now appears in the same article of the Education Code as their successor sections 12752 and 12753. Similarly, the other statutes analyzed in the Matteson case have been continued without substantial change.1

So, when the Legislature added section 12756 to the article on suspension and revocation of state credentials without expressly dispensing with notice and hearing requirements, it is a fair inference it intended such requirements to apply to permanent employees; especially in view of the presumption that the Legislature is aware of the judicial interpretation of any statute which it amends. Latham v. Santa Clara County Hospital, 104 Cal.App.2d 336, 339, 231 P.2d 513; 23 Cal.Jur. 795, 796, Statutes § 173.

There is no room left for an inference that the Legislature when enacting chapter 25 of 1952 intended, by indirection, to sanction dismissal of a permanent employee without a hearing through the medium of revoking his credentials without a hearing.

We can but conclude, now as in 1943, that it is ‘the legislative intent that no teacher and especially one holding permanent tenure should be deprived of his credential to teach * * * without some sort of charges being filed against him, and without being afforded the right of trial thereon, so that he may defend himself against such charges.’ At page 998 of 57 Cal.App.2d, at page 124 of 136 P.2d.

Appellants further claim that the facts are not in dispute and, therefore, the writ should not have issued. It appears to be their contention that their return to the alternative writ alleged that Di Genova was convicted of a sex offense as defined and that he admitted that fact by failing to controvert the allegation by pleading or proof.2 We need not decide whether in such a case the writ should or should not issue.

The return to the writ in this case did not state that Di Genova had been convicted of a particular offense denounced by the statute. It admitted that the state board revoked the credentials without giving him a hearing and alleged (1) that the board acted ‘pursuant to the laws of the State of California, and more particularly Section 12011.7 of the Education Code’; (2) that it did ‘determine in proceedings duly and regularly had therefor that * * * petitioner herein had been convicted of a sex offense as defined in Education Code Section 12011.7’; (3) that it revoked the credentials ‘pursuant to the authority conferred * * * by Section 12756 of the Education Code’; and (4) that such action ‘was predicated * * * upon certified copies of records of conviction of the Municipal Court of Los Angeles Judicial District,’ copies of which were annexed as exhibits and made a part of the return.

The averments in clauses (1), (2) and (3) obviously were mixed statements of law and fact, statements of what the state board did, not what Di Genova had done. Failure to deny that the board ‘revoked’ or ‘determined’ was not an admission that Di Genova was ever ‘convicted’ of anything, especially in view of the facts alleged in the petition and admitted in the return that the board acted without giving him a hearing.

The facts stated in clause (4), above, limited the return to the facts stated in the exhibits mentioned, one of which stated that one Authony Di Genova pleaded guilty to charges that he had violated sections 41.10 and 41.08 of ‘Ordinance 77000’ (of what county or city, not stated; certainly not a state statute). The other exhibit stated that one Anthony De Genova (observe the ‘De’ in contrast to ‘Di’) pleaded guilty to a charge that he committed ‘a misdemeanor, to-wit: vagrancy lewd’ (without mention of any ordinance or statute). Clearly, nothing contained in these exhibits amounted to a statement that the petitioner herein had been convicted of any sex offense defined in the statute. Failure to deny or otherwise controvert those recitals was no admission by petitioner that he had ever been convicted of any such offense.

The judgment is affirmed.

FOOTNOTES

1.  §§ 12776–12780 of the Education Code are a continuation of School Code §§ 5.390–5.394 relative to suspension and revocation of county certificates. §§ 13521–13525 and 13529–13556 of the Education Code are a continuation of the provisions of §§ 5.650–5.652 and 5.654 of the School Code relative to dismissal of permanent employees.

2.  They cite McClatchy v. Matthews, 135 Cal. 274, 67 P. 134. It holds that affirmative averments of material facts made in the return to an alternative writ of mandamus are deemed admitted if not controverted by pleading or proof as authorized by section 1091 of the Code of Civil Procedure.

FRED B. WOOD, Justice.

PETERS, P. J., and BRAY, J., concur.