Balen v. Peralta Junior College Dist.

• Decision Date: 28 June 1974
• Docket Number: S.F. 23096
• Citation: 523 P.2d 629,114 Cal.Rptr. 589,11 Cal.3d 821
• Parties: , 523 P.2d 629 H. Pat BALEN, Plaintiff and Appellant, v. PERALTA JUNIOR COLLEGE DISTRICT, Defendant and Respondent. In Bank
• Court: California Supreme Court

Page 589

114 Cal.Rptr. 589

11 Cal.3d 821, 523 P.2d 629

H. Pat BALEN, Plaintiff and Appellant, v. PERALTA JUNIOR COLLEGE DISTRICT, Defendant and Respondent.

S.F. 23096.

Supreme Court of California,

In Bank.

June 28, 1974.

Rehearing Denied July 25, 1974.

Dan W. Lacy, and Strauss, Neibauer & Lacy, Modesto, for plaintiff and appellant.

Richard J. Moore, County Counsel, and Kelvin H. Booty, Jr., Deputy County Counsel, Oakland, for defendant and respondent.

MOSK, Justice.

Plaintiff H. Pat Balen, a certificated public school teacher, appeals from a summary judgment for defendant college district in an action to compel the district to set aside its allegedly wrongful dismissal of plaintiff, and for other related relief. Because this appeal arises from a summary judgment, we must accept as true the following facts generally alleged by plaintiff in his affidavits. (Desny v. Wilder (1956) 46 Cal.2d 715, 725, 299 P.2d 257.)

Balen was hired in 1965 as an hourly instructor to teach speech in the evening program at Laney College. He was continuously rehired in the same position for a total of four and one-half years. As an active Republican campaigner, Balen attempted to organize the other part-time instructors purportedly to protect their interests. As a result of such political activity, he was told by the head of the speech department 'that she was afraid to recommend (him) for a full-time position because of (his) politics even though she thought (he) was an eminently qualified teacher.' This fear, she stated, stemmed from the fact that 'she feared she would not get tenure if she recommended (him).' Concerned about such statements, Balen brought a formal complaint to the district board of trustees in October 1969. The board accepted the complaint and advised him an investigation of the matter would be conducted. In December 1969, however, before any investigation was initiated, he received oral notification that his contract would not be renewed the following semester.

After oral notice of his termination, Balen made several unsuccessful attempts to ascertain the actual reasons for his discharge. Although the original justification given was that his speech classes were being phased out, several other instructors suggested it was because his politics did not comport with the liberal image of the college. In January 1970 he met with the district chancellor and the college president to express his grievances. These officials verified he was in fact dismissed, although without cause or hearing because he was only a temporary employee.

Five months later Balen finally received written confirmation of his dismissal, and subsequently brought this action seeking reinstatement, lost salary, and damages. The trial court found him to be a temporary employee and dischargeable at will in accordance with the terms of section 13446 of the Education Code, ¹ and thereupon granted the district's motion for summary judgment and simultaneously dismissed the action.

Balen contends that he qualifies as a permanent or probationary employee, and could not have been discharged without notice and hearing; that even if classified as a temporary employee he was entitled to relief because section 13446, providing that the governing boards of school districts may dismiss temporary employees at their pleasure, is unconstitutional; and that his discharge was politically motivated in violation of the First and Fourteenth Amendments. Because, as discussed Infra, we conclude that Balen is properly classified as a probationary instructor and entitled by statute to pretermination notice and hearing, it is unnecessary to reach his constitutional claims. ² To that extent the posture of this case is similar to that of Perry v. Sindermann (1972) 408 U.S. 593, 598, 92 S.Ct. 2694, 33 L.Ed.2d 570.

The essence of the statutory classification system is that continuity of service restricts the power to terminate employment which the institution's governing body would normally possess. Thus, the Legislature has prevented the arbitrary dismissal of employees with positions of a settled and continuing nature, i.e., permanent and probationary teachers, ³ by requiring notice and hearing before termination. (§§ 13404, 13443; Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 100 Cal.Rptr. 16, 493 P.2d 480; Lunderville v. Emery Unified School Dist. (1968) 262 Cal.App.2d 459, 68 Cal.Rptr. 768.) Substitute and temporary teachers, on the other hand, fill the short range needs of a school district, and may be summarily released absent an infringement of constitutional or contractual rights. (§§ 13445, 13446; Bogacki v. Board of Supervisors (1971)5 Cal.3d 771, 97 Cal.Rptr. 657, 489 P.2d 537.) Because the substitute and temporary classifications are not guaranteed procedural due process by statute, they are narrowly defined by the Legislature, and should be strictly interpreted.

The classification system has precipitated recurring litigation; teachers not infrequently seek the greater degree of position permanency which a higher category affords. (See, e.g., Holbrook v. Board of Education (1951) 37 Cal.2d 316, 231 P.2d 853; Rutley v. Belmont Elementary Sch. Dist. (1973) 31 Cal.App.3d 702, 107 Cal.Rptr. 671; Curtis v. San Mateo Junior College Dist. (1972) 28 Cal.App.3d 161, 103 Cal.Rptr. 33; Vittal v. Long Beach Unified Sch. Dist. (1970) 8 Cal.App.3d 112, 87 Cal.Rptr. 319; Hunt v. Alum Rock Union Elementary Sch. Dist. (1970) 7 Cal.App.3d 612, 86 Cal.Rptr. 663.) Concomitant with such litigation has been an unprecedented growth in the state's education statutes and administrative codes. As a result of the intertwining of changing legislative classifications and interpretative court decisions, it is understandably difficult for an individual teacher to define conclusively his status at a particular time. ⁴ The instant race arises within this framework.

Balen taught a total of four and one-half years before being informed his contract would not be renewed. His academic credentials are unchallenged, and his prior experience includes chairmanship of the speech department as a community college in Hawaii. He participated in the retirement plan of the district and was granted sick leave benefits in the same manner as permanent and probationary teachers in the district. He was continuously rehired on annual contracts, and the tradictional nature of his course was one of accepted importance. The school officials had ample opportunity to evaluate his teaching ability, and the record reflects no dissatisfaction on their part. In short, plaintiff's continuity of service would seem to create the necessary expectation of employment which the Legislature has sought to protect from arbitrary dismissal by its classification scheme.

Apart from the parties' apparent expectation of a continuing relationship, the statutes in effect when Balen was hired support his contention that he should be classified as a probationary instructor. In 1965 the Education Code required that a teacher hired for a full year (§ 13334), ⁵ or whose duties continued past the first three school months (§§ 13337, ⁶ 13446) ⁷ be clas sified probationary, unless designated permanet or substitute. Because Balen worked for more than three months his first year, was hired thereafter for a full year, and was not considered a permanent or substitute teacher, he meets the statutory prerequisites for probationary employment.

The district argues sections 13334, 13337, and 13446 should not be applied to parttime instructors and, in any event, that Balen's status was changed by a later statute. In 1967, the Legislature added to the Education Code section 13337.5 which allows districts to hire long-term temporary community college teachers, and provides in its last paragraph that 'any person who is employed to teach adult or junior college classes for not more than 60 percent of the hours per week considered a full-time assignment for permanent employees having comparable duties shall be classified as a temporary employee, and shall not become a probationary employee under the provisions of Section 13446.' Because Balen's workload never exceeded 40 percent of a full-time teacher's assignment, the district claims he was properly classified during the entire course of his employment, notwithstanding the statutes in effect when he was initially employed.

We doubt the Legislature intended that section 13337.5 operate to divest plaintiff of his previously acquired status. As a general rule of construction, statutes are not to be given retroactive effect unless the intent of the Legislature cannot be otherwise satisfied. (Interinsurance Exchange v. Ohio Cas. Ins. Co. (1962) 58 Cal.2d 142, 149, 23 Cal.Rptr. 592, 373 P.2d 640.) 'The Legislature, of course, is well acquainted with this fundamental rule, and when it intends a statute to operate retroactively it uses clear language to accomplish that purpose.' (DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 176, 18 Cal.Rptr. 369, 373, 367 P.2d 865, 869.) There is nothing in section 13337.5 to indicate it was intended to be applicable to employment rendered prior to its enactment. ⁸

The paragraph of section 13337.5 which the district cites to justify its classification of Balen was not part of the original bill submitted to the Legislature, but was added in committee. (1 Sen. J. (1967 Reg. Sess.) p. 863.) The principal portion of the original bill created a long-term temporary status, a classification within which the district urges Balen falls. That part of the statute, however, specifically limits such a classification to persons employed for not more than 'two semesters or quarters within any period of three consecutive years.' Failing to consider this limitation, the district selectively relies on the last paragraph of the statute alone. Because Balen held his position for over four years, he could not be classified under section 13337.5 for more than...