Governing Board v. Mann

Decision Date06 January 1977
Citation135 Cal.Rptr. 526,18 Cal.3d 819,558 P.2d 1
CourtCalifornia Supreme Court
Parties, 558 P.2d 1 GOVERNING BOARD OF RIALTO UNIFIED SCHOOL DISTRICT, Plaintiff and Respondent, v. Thomas R. MANN, Defendant and Appellant. L.A. 30608. In Bank

Robert Mann, Los Angeles, for defendant and appellant.

Paul D. Powers, Hathaway, Clabaugh, Perrett & Webster, Ventura, Ephraim Margolin, Nicholas Arguimbau, Mark I. Soler, San Francisco, Treuhaft, Walker, Brown & Cooper, Oakland, Jonathan R. Adler, Peter H. Meyers, Hermosa Beach, and Michael Rothschild as amici curiae on behalf of defendant and appellant.

Stanford D. Herlick, County Counsel, and Craig S. Jordan, Deputy County Counsel, San Bernardino, for plaintiff and respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Pat Zaharopoulos, Deputy Attys. Gen., as amici curiae on behalf of plaintiff and respondent.

TOBRINER, Justice.

In 1971, defendant Thomas Mann, a tenured certificated teacher employed by plaintiff Rialto Unified School District, pled guilty to a charge of possession of marijuana arising out of his use and possession of a small quantity of that substance in his private residence. Shortly thereafter, the school district filed the instant proceeding, seeking a judicial determination that defendant's marijuana conviction constituted sufficient grounds for dismissal under Education Code section 13403, subdivision (h), which provides that '(c) onviction of a felony or of any crime involving moral turpitude' constitutes cause for dismissal of a permanent teacher. The trial court concluded that defendant's marijuana conviction did constitute cause for dismissal under the section and entered a judgment declaring that plaintiff school district 'has the right to dismiss' defendant from his tenured teaching position.

Defendant has appealed from the judgment, contending primarily that the trial court misconstrued section 13403, subdivision (h), and erred as a matter of law in concluding both that his possession of marijuana conviction constituted a felony and that such conviction involved moral turpitude. In addition, defendant raises a number of procedural objections to the lower court proceedings.

As will appear, however, we have determined that we need not address defendant's numerous contentions as to the allegedly erroneous determinations of the trial court, for we have concluded that the judgment must be reversed on an entirely separate ground. During the pendency of this appeal, the Legislature enacted an entirely new, comprehensive statutory scheme to govern the treatment of marijuana offenders (Stats.1975, ch. 248, p. ; Stats.1976, ch. 952, p. .) One of the recently enacted provisions, effective January 1, 1977, prohibits any public entity, including a school district, from revoking any right of an individual on the basis of a pre-1976 possession of marijuana conviction so long as two years have elapsed from the date of conviction. (Health & Saf.Code, § 11361.7, subd. (b).) Defendant's 1971 conviction falls directly within the statute's coverage. Thus, even if we assume that Education Code section 13403, subdivision (h) formerly authorized defendant's dismissal on the basis of his conviction for possession of marijuana, the Legislature has now, by virtue of the new legislation, repealed such statutory authority.

Although the school district maintains that the new legislation, having taken effect after the trial court judgment, should not be applied in this proceeding, a long and unbroken line of California decisions establishes beyond question that the repeal of the district's statutory authority does effect the present action. As we shall explain, the cases uniformly hold that where, as here, the government's authority rests solely upon a statutory basis, 'a repeal of such a statute without a saving clause will terminate all pending actions based thereon. . . . 'If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered. " (Southern Service Co., Ltd. v. Los Angeles (1940) 15 Cal.2d 1, 11--12, 97 P.2d 963, 970.) Accordingly, since the Legislature has now withdrawn the school district's authority to dismiss defendant on the basis of his possession of marijuana conviction, the trial court judgment in favor of plaintiff must be reversed.

1. The facts.

Defendant Mann began teaching in the Rialto Unified School District in September 1964 and by 1969 had attained tenure as a permanent certificated employee of the district. On the evening of January 31, 1969, defendant was arrested at his home during the course of a 'pot party'; 1 after a complete search of the house revealed that Mann was in possession of three marijuana cigarettes, he was charged both with possession of marijuana (former Health & Saf.Code, § 11530, now § 11357) and maintaining a place where narcotics are used. (Former Health & Saf.Code, § 11557, now § 11366.)

Less than a week thereafter, on February 5, 1969, the school board, acting pursuant to section 13409 of the Education Code, 2 placed defendant on compulsory leave of absence without pay; defendant was given no prior notice of this action and no opportunity to be heard. As events developed, more than two years elapsed before defendant was provided any opportunity to defend his right to retain his employment. 3

Shortly after being placed on compulsory leave, Mann moved in the criminal proceeding to suppress the evidence against him on the ground that such evidence had been obtained as a result of an illegal search and seizure. The search and seizure claim ultimately reached this court; we upheld the validity of the search. (Mann v. Superior Court, supra, 3 Cal.3d 1, 88 Cal.Rptr. 380, 472 P.2d 468; see also Mann v. Smith (9th Cir. 1973) 488 F.2d 245, cert. den. (1974) 415 U.S. 932, 94 S.Ct. 1445, 39 L.Ed.2d 490.) Thereafter, on February 8, 1971, Mann pled guilty to the possession of marijuana charge; the additional 'maintaining a place' charge was dropped.

At the time Mann entered his guilty plea, possession of marijuana was punishable either as a felony or as a misdemeanor. In accepting Mann's guilty plea, the trial court withheld pronouncement of judgment, declining immediately to designate the conviction as either a felony or a misdemeanor, and placed defendant on probation for a two-year period. A year and one-half thereafter, in July 1972, upon the request and recommendation of defendant's probation officer, the trial court in the criminal matter explicitly declared Mann's offense to be a misdemeanor, discharged Mann from the remainder of the probation term, and dismissed the entire criminal proceedings pursuant to Penal Code section 1203.4.

Immediately after Mann pled guilty to the marijuana possession charge in February 1971, the school board notified him of its intention to dismiss him, asserting that his conviction constituted cause for dismissal under Education Code section 13403, subdivision (h). Mann exercised his statutory right to request a hearing, and the school board then instituted the present proceeding, pursuant to former Education Code section 13412, 4 to obtain a declaration from the trial court that the charge against Mann constituted sufficient grounds for dismissal; under the provisions applicable in this case, the school board is required to obtain a judgment in its favor before it may dismiss defendant, a permanent certificated employee. (See former Ed.Code, § 13436.) If such a favorable judgment is obtained, the district is empowered, but is not required, to dismiss the tenured employee. (See Id.; Board of Education v. Swan (1953) 41 Cal.2d 546, 557, 261 P.2d 261.)

The school board's original complaint, filed in March 1971, well before defendant's conviction was finally designated a misdemeanor, alleged only that the conviction constituted a felony, and asserted that dismissal was authorized under Education Code section 13403, subdivision (h) on that basis alone. By the time the case came to trial, however, Mann's criminal offense had been denominated a misdemeanor in the criminal proceeding, and the school board, though still contending that the conviction constituted a felony conviction for purposes of the instant proceeding, sought leave to amend the complaint to allege additionally that Mann had been convicted 'of a crime involving moral turpitude.' The trial court, over defendant's objection, permitted the amendment and offered Mann additional time to prepare for trial; Mann declined the offer.

At trial, evidence was presented disclosing the above chronology of events. Several of the school district's administrative officials also testified that defendant's conduct had gained notoriety in the community and that they believed that it would be detrimental to the educational system of the district if defendant was permitted to resume teaching in the district. In response, defendant introduced evidence of his fine teaching record, his successful chairmanship of the high school social studies department and his innovative instructional abilities; he also provided expert testimony as to the relatively harmless nature of marijuana.

At the conclusion of the trial, the court ruled in favor of the school district, finding both that Mann's criminal offense constituted a felony conviction and that it involved moral turpitude; the court concluded that the conviction constituted sufficient grounds for dismissal under Education Code section 13403, subdivision (h). Accordingly, the court entered judgment declaring that the plaintiff school district 'has the right to dismiss' defendant from his tenured position.

As noted above, defendant has raised a host of contentions...

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