Fountain v. State Board of Education

The present action is against the State Board of Education and its individual members for a declaration that plaintiff’s teaching credential, which was summarily revoked by the board, is still valid and in full force

It was further alleged that Fountain made a written request for a hearing before the state board but he was denied a hearing upon the ground that revocation of his credential was mandatory under section 12756. July 29, 1954, the board revoked plaintiff’s teaching credential. September 1, 1954, the West Covina Board of Education discontinued his services. October 27, 1954, the state board denied his request to be reinstated or to be allowed a-hearing in order to present evidence of his moral fitness to teach in the public schools. The board also informed Fountain that a teaching credential could not be issued to him in the future.

The gravamen of plaintiff’s amended complaint is that the state board acted in excess of its jurisdiction in revoking his credential without a hearing, in that he was never “eon

In passing upon plaintiff’s motion for judgment on the pleadings, the court below ruled in a memorandum opinion that the answer presented no triable issues of fact, that Fountain had not been “convicted” of a “sex offense,” and that the Legislature did not intend section 12756 to apply retroactively.

The judgment declared that section 12756 is inapplicable to Fountain’s situation, that his credential was revoked unlawfully and is still in full force and effect; that he has the right to its immediate restoration; that he is entitled to be restored to his employment with the West Covina School District and to all rights under his contract of employment, including tenure, promotion, salary increases and contract renewals; that the state board is privileged to take steps toward the prospective revocation or suspension of his teaching credential, but not to proceed summarily, or upon the sole basis of the facts alleged in the amended complaint; that the state board has no right to refuse to renew his credential summarily, or upon the sole basis of the facts alleged in the amended complaint; but that the board may consider those facts in proceedings held to determine plaintiff’s moral fitness to hold a teaching credential and to be employed as a public school teacher; that plaintiff was not “convicted” of a “sex offense.”

We agree with the state board that plaintiff was “convicted” of a “sex offense.” The undisputed facts are that Fountain was charged with violating section 647, subdivision 5 of the Penal Code (lewd vagrancy); he submitted the matter to the court on the report of the arresting officers; the court made a finding of guilt, suspended imposition of sentence and placed him on probation on condition that he pay a $50 fine. It cannot be doubted that Fountain was prosecuted for committing a sex offense, as a violation of section 647, subdivision 5, is one of the crimes expressly denominated a “sex offense” by section 12011.7 of the Education Code.

Plaintiff argues, however, that the 1948 proceedings did not terminate in a conviction, that the finding of guilt was vacated by the court in 1950, and that the order dismissing the proceedings against him is res judicata as to his innocence and has the effect of releasing him from “all penalties and disabilities” resulting from the prosecution. In making these contentions Fountain relies upon In re Phillips, 17 Cal.2d 55 [ 100 P.2d 344 , 132 A.L.R. 644 ] and Suspension of Hickman, 18 Cal.2d 71 [ 113 P.2d 1 ], which defined the word “conviction” as used in the mandatory disbarment provisions of the State Bar Act. (Bus. & Prof. Code, §§ 6101, 6102.) In Phillips it was held that the petitioner had been “convicted” when sentence had been imposed and execution suspended, although when the terms of probation had been fulfilled the case was dismissed. The Supreme Court held in Hickman that an attorney has not been “convicted” of an offense involving moral turpitude where imposition of sentence was suspended, probation was granted and the proceedings were subsequently dismissed under section 1203.4 of the Penal Code. Neither.case is helpful. Section 12011.5 of the Education Code, which we have already quoted, expressly provides that a finding of guilt by the court in a trial without a jury is deemed to be' a conviction within the meaning of section 12756 and that such a finding constitutes a conviction irrespective of a subsequent order dismissing the accusation. Section 12011 provides that a termination of probation and an order dismissing an accusation “shall not, for the purposes of this

The next and decisive question on the appeal is whether, as appellants argue, the Legislature intended section 12756 to apply retrospectively. Had Fountain suffered his conviction after the effective date of the statute, there would be no doubt of the board’s authority to revoke his credential by summary action, for it was held in DiGenova v. State Board of Education, 45 Cal.2d 255 [ 288 P.2d 862 ], that the statute does not require either formal notice, charges or a hearing. The DiGenova case did not, however, decide whether the statute was retroactive. The opinion states that the only question involved was the revocation of the plaintiff’s credentials without charges, notice or hearing.

It is an established canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent. (Aetna Cas. & Surety Co. v. Industrial Acc. Com . 30 Cal.2d 388 [ 182 P.2d 159 ].) Section 3 of the Penal Code states that: “No part of-it is retroactive, unless expressly so declared.” Identical provisions are to be found in the Civil Code and the Code of Civil Procedure, and there can be no doubt that such is the policy of the law. As the Supreme Court said in Krause v. Rarity, 210 Cal. 644 , at page 655 [ 293 P. 62 , 77 A.L.R. 1327 ] : “. . . although the legislature has the power to give a statute retrospective operation, if it does not impair the obligations of contracts or disturb vested rights, yet it is to be presumed that no statute is intended to have that effect, and it will not be given that effect, unless such intention clearly appear from the language of the statute.' (See also Estate of Thramm, 80 Cal.App.2d 756 [ 183 P.2d 97 ] ; Rafferty v. City of Covina, 133 Cal.App.2d 745 [ 285 P.2d 64 ] ; Chesin v. Superior Court, 142 Cal.App.2d 360 [ 298 P.2d 593 ] ; State v. Industrial Acc. Com., 48 Cal.2d 355 [ 310 P.2d 1 ].) We find nothing in section 12756 or elsewhere in the Education Code which would compel, much less justify, a conclusion that that statute was intended to apply retrospectively.

Conviction of a sex offense is one of only'three grounds upon

We make reference to these procedures in order to emphasize the manifest injustice of a retrospective application of section 12756. Were the statute to operate retrospectively, a teacher who had rendered satisfactory services in the public schools for many years could be permanently excluded from his profession and peremptorily dismissed from his employment solely because, at some time in his youth, he had suffered a conviction of a crime denounced as a “sex offense.” He would be afforded no opportunity to present evidence of his present moral character, his reputation and standing in the community

The first sentence of the statute reads, in material part: ‘‘Whenever the holder of any credential . . . issued by the State Board of Education has been convicted of any sex offense . . . the . . . Board . . . shall forthwith suspend the credential. . . .” The words “whenever” and “forthwith” commonly denote future time. The second and third sentences read: “If the conviction is reversed and the holder is acquitted of the offense in a new trial or the charges against him 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. ...” (Emphasis added.) We need say no more of the sentences we have just quoted than that they clearly and unmistakably refer to criminal proceedings occurring after the effective date of the statute. Had the Legislature intended the contrary, it could have enacted the statute to commence: “Whenever the holder of any credential . . . has heretofore been or is hereafter convicted” of a “sex offense” and used similar wording throughout. Our view of the legislative intention is fortified by the express language of sections 13001.3 and 14002.3, Education Code, which were also added to the code in 1952. Those statutes provide that governing boards of school districts shall not employ or retain in employment persons in public school service who have been “convicted” of a “sex offense,” subject to provisos identical in meaning to that contained in section 12756, namely, that: “If, however, any such conviction is reversed and the person is acquitted of the offense in a new trial or the charges against him are dismissed, this section does not prohibit his employment thereafter.” The state board refers to sec

In urging.a retrospective interpretation of section 12756, appellants rely heavily upon the 1955 amendments to sections 12011.7 and 12106 of the code. The amendment to section 12011.7 which defined a violation of section 311, subdivision 1 of the Penal Code (indecent exposure) as a “sex offense,” added the words “committed on or after the. effective date of the amendment of this section”; the amendment to the latter statute provides that a conviction of indecent exposure prior to the effective date of the amendment may, in the state board’s discretion, constitute grounds for denying an application for a teaching credential. These amendments, it is argued, indi- ' cate a legislative intent to give retroactive operation to section 12756 as to persons convicted of indecent exposure. The reason for the amendments is furnished by an extract from a report of the Assembly Interim Committee on the Judiciary, which is quoted in appellants’ brief: “The enactment of such legislation was urged by the Department of Education because there are instances in which persons have been convicted of indecent exposure but are not truly sex criminals, and such cases should be distinguished.” The amendments in our opinion were' merely intended to distinguish between acts committed on or after the effective date of the amendments and acts committed prior to that date, but subsequent to the enactment of section 12756.

Appellants also place much emphasis upon other quoted extracts from reports of the various legislative committees concerned with the adoption of section 12756 and related sections of the code. We have carefully examined these expressions of the legislative intent,- but find in them nothing which conflicts with the views we have stated. With respect to. the attorney general’s opinion (20 Ops. Atty. Gen. Cal 10) mentioned earlier, holding section 12756 to be retrospective, we need say only that we deem it erroneous, and that it is ineon