Di Genova v. State Bd. of Ed.

• Decision Date: 14 October 1955
• Citation: 45 Cal.2d 255,288 P.2d 862
• Court: California Supreme Court
• Parties: Anthony DI GENOVA, Petitioner and Respondent. v. STATE BOARD OF EDUCATION et al., Respondents and Appellants. * S. F. 19332.

Page 862

288 P.2d 862

45 Cal.2d 255

Anthony DI GENOVA, Petitioner and Respondent. v. STATE BOARD OF EDUCATION et al., Respondents and Appellants. ^*

S. F. 19332.

Supreme Court of California, In Bank.

Oct. 14, 1955.

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

Walter H. Duane, San Francisco, for respondent.

CARTER, Justice.

Plaintiff commenced this mandamus proceeding to compel the reinstatement of his state credentials to teach in the public schools. He named as defendants the State Board of Education, its members, and commission on credentials and its members, the Board of Education of the City and County of San Francisco, its members, and others. He charged in his petition that he holds an elementary credential and other special credentials issued by the state board and that he was a teacher with permanent tenure employed by the San Francisco board; that no charges have been filed against him accusing him of immoral or unprofessional conduct or any other grounds; that on September 28, 1953, the San Francisco board dismissed plaintiff as a teacher without a hearing, without 'preferring' any charges against him, and without notice; that defendants acted arbitrarily and capriciously in revoking his credentials.

The superior court issued an alternative writ of mandate and in their return thereto and answer to the petition, defendants admit plaintiff possessed the credentials issued by the state board and that he was a permanent tenure teacher in the San Francisco schools. They alleged that the state board did revoke plaintiff's credentials under the laws of California particularly section 12011.7 ¹ of the Education Code, and pursuant to section 12756 of that code; ² that by reason of the revocation of plaintiff's credentials the San Francisco board dismissed petitioner. Exhibits were attached. One exhibit was a certified copy of the minutes of the state board showing that the secretary requested that certain named persons, including plaintiff, have their credentials revoked because of conviction of sex offenses. A resolution was duly adopted revoking the credentials of all of these persons because of their conviction of sex offenses as defined in section 12011.7 of the Education Code; the resolution was passed pursuant to section 12756 of that code. The other exhibits are certified transcripts of the proceedings in the municipal court in Los Angeles. One of these showed plaintiff had pleaded guilty to a violation of section 41.10 of ordinance 77000 of the city of Los Angeles, ³ and that he was sentenced to 90 days in jail but that execution was suspended and plaintiff was placed on probation for two years, twenty days of which must be spent in jail. The other transcript showed that he had pleaded guilty to 'vagrancy lewd' for which he was fined $50.

The order to show cause issued with the alternative writ came on for hearing at which time defendants served and filed their return and answer. Plaintiff's counsel said he would put on his evidence and that the only question involved was that the revocation of plaintiff's credentials by the state board and his dismissal by the San Francisco board were had without charges, notice or hearing. He put plaintiff on the stand but nothing was developed that had not been admitted other than letters between the state board and plaintiff. It was stipulated that the credentials were revoked on October 29, 1953. Defendants introduced into evidence a certified copy of the portion of the Los Angeles ordinance containing section 41.10 of the Los Angeles Municipal Code, supra. Plaintiff filed no replication or answer to defendants' return and answer. The matter was submitted; judgment was for plaintiff. The judgment recited that the state board had revoked plaintiff's credentials; that the San Francisco board had dismissed petitioner in excess of its jurisdiction and in abuse of its discretion; and ordered the reinstatement of the credentials and plaintiff to his position as teacher.

Defendants assert that no notice or hearing was required for a revocation of plaintiff's credentials; that section 12756, supra, should not be construed as requiring a hearing. Because of a combination of several factors, we are compelled to agree with defendants' assertion.

Plaintiff relies on the rule of statutory construction that statutes should be construed so as to require a hearing. The most recent expression by this court on that question is in Fascination, Inc., v. Hoover, 39 Cal.2d 260, 271, 246 P.2d 656, 662, where we said: '* * * it has been held that unless the statute expressly provides to the contrary a license cannot be revoked without a hearing where the statute contemplates a quasi judicial determination by the administrative agency that there be cause for the revocation; that because of reasons of justice and policy the statute will be interpreted to require a hearing. Ratliff v. Lampton, 32 Cal.2d 226, 195 P.2d 792, 10 A.L.R.2d 826; Carroll v. California Horse Racing Board, supra, 16 Cal.2d 164, 105 P.2d 110; La Prade v. Department of Water & Power, supra, 27 Cal.2d 47, 162 P.2d 13; Covert v. State Board of Equalization, 29 Cal.2d 125, 173 P.2d 545; Steen v. Board of Civil Service Com'rs, 26 Cal.2d 716, 160 P.2d 816; Bannerman v. Boyle, 160 Cal. 197, 116 P. 732; Welch v. Ware, 161 Cal. 641, 119 P. 1080; Knights of Ku Klux Klan, Inc., v. Francis, 79 Cal.App. 383, 249 P. 539.'

Here the statute, section 12756, supra, provides that when a person has been convicted of any one of certain specified offenses the state board 'shall' (ordinarily a mandatory word, Educ.Code, § 19) 'forthwith' revoke the credential when the conviction becomes final. This implies that the credential should be revoked without the delay which would be incident to a hearing, probably for the reason that teachers convicted of sex offenses should be promptly removed from the classroom and contact with students.

Other related statutory provisions dealing with revocation of credentials on grounds other than conviction of sex offenses make express provision for notice and hearing. Section 12752.1 of the Education Code requires notice and hearing for revocation under sections 12751 and 12752 which deal generally with revocation for cause, but makes no reference to suspensions and revocations under section 12756, supra. This is indicative of a legislative intent that no hearing is to be had under section 12756. In Carroll v. California Horse Racing Board, 16 Cal.2d 164, 105 P.2d 110, 111, an implied requirement of notice and hearing was found where the statute provided that the license of a trainer of horses could not be revoked "without just cause." St.1933, p. 2047, § 3. Here, however, the other statutes which require hearings deal with the same class of persons, those holding teaching credentials, and a mandatory duty was not there imposed on the board to revoke a credential when the holder had been convicted of a specified crime. See, Escobedo v. State Department of Motor Vehicles, 35 Cal.2d 870, 222 P.2d 1.

In the revocation of a license for the conviction of a specified crime under statutes like section 12756 there is no real necessity for the board to 'examine the facts, resolve any conflicts in the evidence, and exercise its judgment with respect thereto'. Covert v. State Board of Equalization, 29 Cal.2d 125, 131, 173 P.2d 545, 548. There can be little dispute as to the conviction as it is a matter of public record and the question of identity is not likely to arise. Whether the conviction is of a crime of the character specified is a question of law. Revocations on such grounds constitute ministerial action by the board rather than quasi judicial action. For illustration, in dealing with the disbarment of an attorney for conviction of a crime involving moral turpitude it was said in In re Collins, 188 Cal. 701, 706, 206 P. 990, 992, 32 A.L.R. 1062: 'It will thus appear that the Supreme Court of the United States has, in these cases, definitely held that the legislature has power to provide that the conviction of a person of a crime, who had prior thereto been given the right or privilege of engaging in the practice of either of said learned professions, should, ipso facto, work a revocation of his right or privilege to lawfully continue so to do. If the Legislature thus possesses this plenitude of power in respect to those members of such professions who have been convicted of crimes involving moral turpitude, it may not be contended that the Legislature has not also the power to provide that the record of such conviction shall constitute conclusive evidence of the fact of such conviction, for the purpose of having stricken from the rolls of such profession the name of the person who has been thus convicted of such a crime. * * * In this view of the matter the essential fact, working a deprivation of the petitioner's right and privilege of continuing in the practice of his profession, was not his conviction of a crime, nor was it the order of this court made automatically upon the receipt of the record of such conviction, but it was his violation of the law in the commission of said crime; and as to that he had his day in court when he was put to trial for and convicted of the commission of such crime. * * * As is stated by the Supreme Court of New York, in the case of In re Lindheim, 195 App.Div. 827, 187 N.Y.S. 211: 'The provisions of our judiciary law above cited are mandatory in case of a conviction for a felony, and upon such conviction the result prescribed follows automatically, and upon presentation of the facts to the court the prescribed order must be made.' A similar view is expressed by this court in the case of In re Riccardi, 182 Cal. 675, 189 P. 694, wherein the court says:

"It has always been understood that conviction of an attorney of a...