Comings v. State Bd. of Education

• Decision Date: 26 January 1972
• Citation: 100 Cal.Rptr. 73,23 Cal.App.3d 94
• Court: California Court of Appeals Court of Appeals
• Parties: , 47 A.L.R.3d 742 Arthur Tilleard COMINGS, Plaintiff and Appellant, v. The STATE BOARD OF EDUCATION of the State of California, Defendant and Respondent. JEFFERSON UNION HIGH SCHOOL DISTRICT, Plaintiff and Respondent, v. Selwyn JONES, Defendant and Appellant. Civ. 29298, 29573.

Page 73

100 Cal.Rptr. 73

23 Cal.App.3d 94, 47 A.L.R.3d 742

Arthur Tilleard COMINGS, Plaintiff and Appellant, v. The STATE BOARD OF EDUCATION of the State of California, Defendant and Respondent.

JEFFERSON UNION HIGH SCHOOL DISTRICT, Plaintiff and Respondent, v. Selwyn JONES, Defendant and Appellant.

Civ. 29298, 29573.

Court of Appeal, First District, Division 4, California.

Jan. 26, 1972.

Rehearing Denied Feb. 24, 1972.

Hearing Denied March 30, 1972.

No. 29298:

Paul N. Halvonik, Robert G. Parker, Charles C. Marson, American Civil Liberties Union of Northern California, San Francisco, for appellant; John Kaplan, Stanford, of counsel.

Evelle J. Younger, Atty. Gen., Richard L. Mayers, Deputy Atty. Gen., San Francisco, for respondent.

No. 29573:

Levy & Van Bourg, San Francisco, for appellant.

Keith C. Sorenson, Dist. Atty., Jerome F. Coleman, Deputy Dist. Atty., Redwood City, for respondent.

RATTIGAN, Associate Justice.

Although these appeals have reached us from different procedural sequences, we consider them together because of the questions common to both: whether, and upon what evidence, a public school teacher may be subjected to administrative penalties after he has been arrested and convicted upon a charge of possession of marijuana.

The Comings Appeal (1 Civil 29298): Facts

For several years prior to 1969, appellant Arthur Tilleard Comings held certain certification documents issued by respondent State Board of Education (hereinafter 'the board') pursuant to the Education Code and to Title V of the California Administrative Code. The documents included a general elementary teaching credential which authorized Comings to serve as a teacher in any public elementary school, or in grades 7 or 8 of any junior high school, in California. An accusation was filed with the board on August 21, 1968, alleging that Comings had been in possession of marijuana in San Diego on February 23, 1967; that he had consequently been arrested and convicted on a charge of violating Health and Safety Code section 11530; and that his certification documents should be revoked because he had thereby committed 'acts involving immoral and unprofessional conduct,' 'acts demonstrating his unfitness for service: and 'an act or acts involving moral turpitude.'

Comings demanded and received an administrative hearing, which was conducted pursuant to the Administrative Procedure Act. (Ed.Code, § 13203; Gov.Code, § 11500 et seq.) He appeared at the hearing through counsel only. No testimony was presented at the hearing, but opposing counsel (1) stipulated to the introduction of the evidence received at Comings' preliminary examination on the marijuana charge, ¹ and of the minute-order record of his plea of guilty thereto in the Superior Court of San Diego County; and (2) stipulated that he was subsequently convicted on the charge in that court, and was granted probation. ² None of the foregoing evidence was disputed, nor is it disputed on Comings' appeal: no other evidence was received at the hearing.

The hearing officer proposed, and the board adopted, a decision revoking Comings' certification documents pursuant to Education Code sections 13202 and 13129, ³ which were cited in the decision. Comings thereupon sought a writ of mandate, in the Superior Court of the City and County of San Francisco, to compel the board to set aside its decision and to reinstate his certification documents. The cause was apparently submitted on the pleadings and the administrative record, without the introduction of any evidence. The superior court denied Comings' petition by minute order, ⁴ from which he appeals.

The Jones Appeal (1 Civil 29573): Facts

In and prior to 1969, appellant Selwyn Jones was a permanent, certificated employee of respondent Jefferson Union High School District, and taught in the art department of Westmoor High School in Daly City, San Mateo County. On August 22, 1969, while visiting Hawaii, Jones was arrested and charged with possession of marijuana in violation of the laws of that state. Pursuant to his plea of nolo contendere, he was thereafter convicted as charged, and granted probation and fined, in the Circuit Court of the Fifth District of Hawaii.

After Jones' return to Westmoor High School in the fall of 1969, respondent school district's superintendent filed, with respondent district's governing board and pursuant to Education Code section 13404, a written statement of charges against him. ⁵

The board commenced administrative proceedings directed to Jones' immediate suspension and dismissal. (Ed.Code, § 13408 et seq.) When he demanded a hearing, the board by resolution authorized the San Mateo County District Attorney to file an action for Jones' dismissal. (Id., § 13412, subd. (b).) The district attorney commenced such action in the Superior Court of San Mateo County on November 10, 1969, alleging the above-recited sequence in the 'Complaint for Dismissal.' Jones having answered the complaint, the cause was tried before the court sitting without a jury. As plaintiff at the trial, respondent school district introduced testimony by Dennis Higashi and Margaret Riggs. Higashi, an officer in the police department of the County of Kauai, Hawaii, testified to the circumstances surrounding Jones' arrest, in which he (Higashi) had participated. ⁶

Miss Margaret Riggs, vice-principal at Westmoor High School, testified as follows: ⁷ Jones' return to the school as a teacher would adversely affect its art department, its faculty at large, its student body generally, and the students' parents, because many of the persons involved had expressed 'disapproval' or 'concern' at the prospect of having a teacher on the campus who had been convicted of using marijuana or who had admitted its use. The effect of his return would 'not be good,' as to the students, because 'the behavior of a faculty member who would have used marijuana would be . . . (an) . . . example in opposition to the instructions which we are giving . . . (to the students) . . .' in 'a campaign, instructional campaign, going on within our own school district . . . on drug use and abuse.' Directly asked for her 'overall opinion' concerning Jones' 'fitness to teach after his conviction of marijuana possession and his admission to marijuana use,' Miss Riggs testified that it 'would not be a positive one,' and 'would, in fact, work against the total goals of our school,' because it would not indicate to the students 'the kind of behavior which they are told to develop.'

Miss Riggs also testified that her knowledge of Jones' arrest and conviction in Hawaii, and of his admissions to the use of marijuana (see fn. 7, Ante), was based exclusively upon information she had received after Jones had been suspended in the course of the administrative proceedings commenced against him in October, 1969. Jones, however, called at the trial in his own behalf, testified in effect that his 1969 arrest and conviction had been reported in the San Francisco Chronicle. ⁸ (He also denied having made the oral admissions attributed to him by Officer Higashi, and testified to the general effect that he could have successfully defended the Hawaii prosecution, but pleaded nolo contendere therein as a matter of convenience.)

Upon the foregoing evidence, the trial court made findings of fact which in effect dismissed some of the original charges against Jones but, sustaining others, found cause for his dismissal. ⁹ Jones appeals from the judgment, next duly entered, authorizing his dismissal.

Challenging the administrative determination and the trial court's action in each of the cases before us, appellants contend (1) that, as a matter of law, possession of marijuana, or conviction for the crime thereof, cannot amount to 'immoral or unprofessional conduct,' or to an act or crime 'involving moral turpitude' or demonstrating 'evident unfitness for service,' within the meanings of these terms as used in Education Code sections 13202, 13129 (subd. (e)) and 13403; and (2) that, as a matter of proof, the contrary conclusion reached by the trial court, in each of the present cases respectively, is not supported by substantial evidence.

The first argument rests upon the propositions assertedly advanced in selected scientific and other authorities, cited in appellants' briefs, to the effect that the use of marijuana is medically harmless and (although illegal) commonplace among students and adults in California and elsewhere. ¹⁰ If these propositions were accepted as true (and we are requested to take judicial notice of their truth), appellants argue that, as a matter of law, possession of marijuana cannot be 'immoral,' or an 'act involving moral turpitude' as such terms have been defined by the courts. (Appellants cite, E.g., Board of Education v. Weiland (1960) 179 Cal.App.2d 808, 811, 4 Cal.Rptr. 286, and Palo Verde etc. Sch. Dist. v. Hensey (1970) 9 Cal.App.3d 967, 971--972, 88 Cal.Rptr. 570 ('immoral'); Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 73, 64 Cal.Rptr. 785, 435 P.2d 553 ('moral turpitude').) We do not accept--because we do not reach--the dubious premise that a criminal act cannot be characterized as 'immoral' if it is medically harmless or commonly committed; appellants' argument to this effect fails for other reasons.

In the first place, we cannot judicially notice the Truth of the stated propositions that the use of marijuana is harmless or commonplace. The authorities cited to both effects (see fn. 10, Ante (first paragraph)) were mentioned in a brief submitted by Comings in his trial court, but it does not appear that judicial notice of the truth of their asserted conclusions (i.e., that marijuana was harmless and that its use was common) was 'requested' in that court (Evid.Code, § 455, subd. (a)) or taken by it with advance notice to the opposite party. (Id., subd. (b).) In all events, the accuracy of the matters asserted, in either proposition, is...