Di Genova v. State Bd. of Ed. (State Report Title: DiGenova v. State Bd. of Educ.)

Citation18 Cal.Rptr. 369,57 Cal.2d 167,367 P.2d 865
CourtUnited States State Supreme Court (California)
Decision Date09 January 1962
Parties, 367 P.2d 865 Anthony DI GENOVA, Plaintiff and Respondent, v. STATE BOARD OF EDUCATION et al., Defendants and Appellants. * S. F. 20720

Stanley Mosk, Atty. Gen., Lee B. Stanton, Deputy Atty. Gen., Dion R. Holm, City Atty., and Irving G. Breyer, San Francisco, for defendants and appellants.

Leon E. Shiells, Menlo Park, for plaintiff and respondent.

Kenny, Morris & Ibanez, Robert W. Kenny, Los Angeles, Stephen I. Zetterberg and Young, Zetterberg, Henrie & McCarthy, Pomona, amici curiae on behalf of plaintiff and respondent.

GIBSON, Chief Justice.

Defendants appeal from a judgment which granted a peremptory writ of mandate directing the State Board of Education to reinstate plaintiff's credentials as a teacher and requiring the Board of Education of the City and County of San Francisco to reinstate plaintiff to his position in the public schools of San Francisco. His credentials were revoked and he was dismissed from his position on the theory that this action was required by sections added to the Education Code effective as of July 2, 1952, which in general prohibit the employment in public schools of persons convicted of certain sex offenses defined in specified sections of the Penal Code and the Welfare and Institutions Code. 1 (Stats.1953, 1st Ex.Sess.1952, ch. 25, p. 389.) The principal question presented on this appeal is whether the legislation is to be applied retrospectively to a person convicted prior to its enactment.

In December 1945, over six years before adoption of the legislation, plaintiff was charged in the Municipal Court of the Los Angeles Judicial District with 'a misdemeanor, to wit: vagrancy lewd,' and, after pleading guilty, was sentenced and paid a fine of $50. Although the docket of the criminal trial does not disclose whether the conviction was for violation of a statute referred to in the 1952 legislation, we may assume, in view of the pleadings here, that it was for violation of one of those statutes, namely, subdivision 5 of section 647 of the Penal Code which, at that time, provided that every 'idle, or lewd, or dissolute person, or associate of known thieves' was a vagrant and guilty of a misdemeanor. 2 Prior to January 1949 plaintiff received a general elementary school credential, and in that month, more than three years before enactment of the legislation in question, he was employed as a teacher by the San Francisco Unified School District. He acquired tenure and remained a teacher in the district until the date of his dismissal. A special teaching credential issued to him by the state in 1951 was renewed on April 30, 1953.

The record does not show when the fact of plaintiff's conviction was discovered, but he was dismissed without notice or hearing on September 28, 1953, and his credentials were revoked on October 29. His petition for mandate, filed in December 1953, alleged in part that the action taken against him was invalid because it was without notice or hearing. Judgment was entered for plaintiff on this ground, and we reversed, holding that no notice or hearing was required. (Di Genova v. State Board of Education (1955) 45 Cal.2d 255, 288 P.2d 862.) Subsequently it was held in Fountain v. State Board of Education (1958) 157 Cal.App.2d 463, 320 P.2d 899 (hearing denied by this court) that the legislation involved here was not intended to apply retrospectively to persons convicted of a sex offense prior to the effective date of the statute. In rendering the judgment from which the present appeal was taken, the trial court followed the rule laid down in the Fountain case and held that defendants exceeded their jurisdiction in revoking plaintiff's credentials and terminating his employment.

It is specifically provided in three of our basic codes that no part thereof is retroactive 'unless expressly so declared.' (Civ.Code, § 3; Code Civ.Proc. § 3; Pen.Code, § 3.) This is a rule of construction originally developed by the courts. In People v. Harmon, 54 Cal.2d 9, 25, 4 Cal.Rptr. 161, 171, 351 P.2d 329, 339, it was said that section 3 of the Penal Code, supra, 'is but a restatement of a 'general rule of statutory construction' (Von Schmidt v. Huntington (1850), 1 Cal. 55, 65) recognized by the Code Commissioners by their citation of that and kindred cases.' Similar statements appear in In re Cate, 207 Cal. 443, 448-449, 279 P. 131, and in Estate of Potter, 188 Cal. 55, 65, 204 P. 826. Accordingly, where language used by the Legislature has not clearly shown that retroactive application was intended, the rule against retroactive construction has uniformly been held applicable to codes or acts not containing the provision set forth in the Civil Code, the Code of Civil Procedure, and the Penal Code. (State of California, Subsequent Injuries Fund v. Industrial Acc. Comm., 48 Cal.2d 355, 361-362, 310 P.2d 1 (Labor Code); Aetna Cas. & Surety Co. v. Industrial Acc. Comm., 30 Cal.2d 388, 393-395, 182 P.2d 159 (Labor Code); Krause v. Rarity, 210 Cal. 644, 655-656, 293 P. 62, 77 A.L.R. 1327 (former California Vehicle Act); In re Cate, 207 Cal. 443, 448-449, 279 P. 131 (State Bar Act); Estate of Potter, 188 Cal. 55, 65, 68, 204 P. 826 (former Inheritance Tax Act); Chambers v. Gibb, 186 Cal. 196, 199, 198 P. 1032 (former Inheritance Tax Act); Willcox v. Edwards, 162 Cal. 455, 460-461, 123 P. 276 (amendment to the Constitution); Bascomb v. Davis, 56 Cal. 152, 156 (federal act); Gates v. Salmon (1865) 28 Cal. 320, 321-323 (former Practice Act).)

It is thus clear that the absence of the statutory provision from other codes and statutes, including the Education Code, does not indicate that with respect to those enactments the Legislature has rejected the rule against a retroactive construction or that some different rule is applicable. The rule to be applied is the same with respect to all statutes, and none of them is retroactive unless the Legislature has expressly so declared.

The statement in the Education Code that its provisions are to be liberally construed with the view to effect its objects and promote justice (§ 2) cannot be interpreted as a declaration that any of its sections is to be given retroactive effect. Aetna Cas. & Surety Co. v. Industrial Acc. Comm., 30 Cal.2d 388, 182 P.2d 159, involved the question whether an amendment to the Workmen's Compensation Act increasing benefits to injured employees could be construed as retroactive in the absence of an express declaration. The Labor Code directs (§ 3202) that its provisions governing workmen's compensation are to be 'liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.' It was argued that in view of this declaration and decisions holding that all reasonable doubt must be resolved in favor of the employees, the amendment should be given retroactive application. In rejecting this argument, the Aetna opinion stated (30 Cal.2d at p. 395, 182 P.2d at page 162): 'No authority is cited for this novel doctrine which would require the court to ignore the rule against retroactive operation with respect to statutes increasing benefits to persons favored by remedial legislation. The rule of liberal construction and the rule that statutes should ordinarily be construed to operate prospectively are neither inconsistent nor mutually exclusive. They relate to different aspects of the interpretation of statutes, and are found in most of the codes, including the Labor Code. Civil Code, §§ 3, 4; Code of Civ.Proc., §§ 3, 4; Penal Code, §§ 3, 4; Labor Code, §§ 4, 3202. It would be a most peculiar judicial reasoning which would allow one such doctrine to be invoked for the purposes of destroying the other. It seems clear, therefore, that the legislative intent in favor of the retrospective operation of a statute cannot be implied from the mere fact that the statute is remedial and subject to the rule of liberal construction.' 3

State of California, Subsequent Injuries Fund v. Industrial Acc. Comm., 48 Cal.2d 355, 361-362, 310 P.2d 1, also involved the question of whether an amendment to the workmen's compensation provisions of the Labor Code was retroactive. It was there pointed out that nowhere in the amendment had the Legislature declared that it should be given retroactive operation, and the court concluded that the claim of retroactivity was unsound notwithstanding the fact that the legislation was remedial and curative in character and was based on legislative declarations and findings concerning public policy and public welfare and the inequity existing under the law prior to the amendment.

It is settled therefore that no statute is to be given retroactive effect unless the Legislature has expressly so declared and that this rule is not limited by a requirement that a statute be liberally construed to effect its objects and promote justice.

We come now to a consideration of the provisions of the 1952 legislation which were applied retroactively by defendants in revoking plaintiff's credentials.

Section 13207 of the Education Code provides: 'Whenever the holder of any credential, life diploma, or document issued by the State Board of Education has been convicted of any sex offense as defined in Section 12912, the State Board of Education shall forthwith suspend the credential, life diploma, or document. 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, life diploma, or document. When the conviction becomes final or when imposition of sentence is suspended the board shall forthwith revoke the credential, life diploma, or document.' 4

The quoted section, considered as a whole, shows a plan of first suspending credentials immediately upon conviction and then, subsequent to...

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