Fountain v. State Bd. of Ed.
| Decision Date | 05 February 1958 |
| Citation | 320 P.2d 899,157 Cal.App.2d 463 |
| Court | California Court of Appeals Court of Appeals |
| Parties | George Stephen FOUNTAIN, Plaintiff and Respondent, v. The STATE BOARD OF EDUCATION et al., Defendants. The State Board of Education, William L. Blair, Wilbur D. Simons, Thomas J. Mellon, Dr. Mabel Kinney, William G. Werner, William N. Bucknam, Mrs. Margaret H. Strong, Byron H. Atkinson, James Mussatti and Max J. Osslo and Roy E. Simpson, Superintendent of Public Instruction and Secretary and Executive Officer of the State Board of Education, Defendants and Appellants. Civ. 22406. |
Edmund G. Brown, Atty. Gen., Lee B. Stanton, Deputy Atty. Gen., for appellants.
Carter, Young, Zetterberg & Henrie, Pomona, for respondent.
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 and effect; and against the West Covina Board of Education and its individual members for a declaration that plaintiff is entitled to be restored to his position as an elementary school teacher in the West Covina School District. The State Board defendants appeal from a declaratory judgment in favor of plaintiff which was entered on the pleadings. No appeal has been taken by the West Covina defendants.
The following facts were alleged in plaintiff's amended complaint and were admitted in defendants' answer to be true. In October 1948, plaintiff was accused in the Los Angeles Municipal Court of being a lewd vagrant, in violation of Section 647, subdivision 5 of the Penal Code. Fountain pleaded not guilty and demanded a jury trial. He then withdrew his demand for a jury trial and submitted the matter to the court on the arrest report. November 17, 1948, the court found him guilty of being a lewd vagrant. December 2, 1948, the proceedings were suspended without imposition of sentence and Fountain was granted probation on condition that he pay a $50 fine, which he paid. On January 4, 1950, pursuant to a motion under Section 1203.4 of the Penal Code, the court vacated its finding of guilt, entered a plea of not guilty, and dismissed the case. The State Board of Education issued a general elementary credential to plaintiff in 1951; the credential was renewed in 1953. Plaintiff was employed as an elementary school teacher by the West Covina Board of Education for the school year commencing in September 1951, and his employment was successively renewed by written contract for the school years commencing in September 1952, 1953 and 1954. By virtue of the last contract renewal plaintiff became a permanent employe of the school district and was earning a salary of $4,800 a year. In May 1954, the State Board notified Fountain of its intention to revoke his teaching credential under the provisions of Section 12756 of the Education Code, which was enacted by the Legislature in 1952.
It is sufficient to say of the section, at this point, that in conjunction with Sections 12011, 12011.5 and 12011.7 of the Education Code, 1 it provides that whenever the holder of a teaching credential has been 'convicted' of any 'sex offense' specified in Section 12011.7 including lewd vagrancy, the State Board shall suspend the credential forthwith and when the conviction becomes final or imposition of sentence is suspended, the Board shall revoke the credential forthwith. A finding of guilt by the court in a trial without a jury is deemed to be a conviction notwithstanding a subsequent order of dismissal under Section 1203.4 of the Penal Code; such an order is to have no effect.
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 'convicted' of a sex offense within the meaning of Section 12756 of the Education Code, and that the statute is unconstitutional and void insofar as it purports to require the Board to revoke his credential summarily. In their answer, the State Board defendants denied these allegations of the amended complaint, and alleged as a separate defense to the action that immediately upon the adoption of Section 12756 they sought from the attorney general his opinion as to whether the statute was applicable to persons 'convicted' of a sex offense prior to the effective date of the statute; that the attorney general replied in the affirmative by written opinion dated July 1, 1952 and reported at 20 Opinions Attorney General California 10; that the Board has continuously followed the attorney general's construction of the statute in administering and enforcing the laws relating to teachers' credentials; that although the Legislature had knowledge of this adminstrative practice and has met on many occasions since 1952, it has not amended Section 12756; and that its inaction indicates legislative approval of the attorney general's construction of the statute.
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'.
Two questions are presented on the appeal: (1) Was Fountain 'convicted' in 1948 of a 'sax offense' as defined by Section 12011.7 of the Education Code? (2) If so, did the Legislature intend Section 12756 to apply to holders of a teaching credential 'convicted' of a 'sex offense' prior to the effective date of the statute?
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, 109 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. Business & Professions 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 division, have any effect.' The latter statute was enacted in 1949, prior to Fountain's motion to vacate the finding of guilt. Furthermore, it is settled that proceedings to suspend or revoke business or professional licenses are not included among the penalties and disabilities that are released by a...
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Di Genova v. State Bd. of Ed. (State Report Title: DiGenova v. State Bd. of Educ.)
...(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......
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...Thereafter an appellate decision determined that the relevant legislation applied prospectively only. (Fountain v. State Board of Education (1958) 157 Cal.App.2d 463, 320 P.2d 899.) Plaintiff reinstituted his action and the case again came to this court. We concluded that the doctrine of la......
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...of a teacher on the basis of an offense committed prior to the enactment of the statute was invalid. (Fountain v. State Board of Education (1958) 157 Cal.App.2d 463, 320 P.2d 899; see DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 18 Cal.Rptr. 369, 367 P.2d 865.) As a consequenc......
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