Governing Board v. Metcalf

• Decision Date: 04 January 1974
• Citation: 36 Cal.App.3d 546,111 Cal.Rptr. 724
• Court: California Court of Appeals Court of Appeals
• Parties: GOVERNING BOARD OF the MOUNTAIN VIEW SCHOOL DISTRICT OF LOS ANGELES COUNTY, Plaintiff and Respondent, v. Frank Hamilton METCALF, Defendant and Appellant. Civ. 39546.

Page 724

111 Cal.Rptr. 724

36 Cal.App.3d 546

GOVERNING BOARD OF the MOUNTAIN VIEW SCHOOL DISTRICT OF LOS ANGELES COUNTY, Plaintiff and Respondent, v. Frank Hamilton METCALF, Defendant and Appellant.

Civ. 39546.

Court of Appeal, Second District, Division 3, California.

Jan. 4, 1974.

Warren, Adell & Miller, Hirsch Adell and Marylove Maloney Lee, Los Angeles, for defendant and appellant.

John D. Maharg, Co. Counsel, Los Angeles County, and Audrey Oliver, Deputy Co. Counsel, Los Angeles, for plaintiff and respondent.

COBEY, Associate Justice.

Defendant, Frank Hamilton Metcalf, appeals from a judgment declaring that the Governing Board of the Mountain View School District had sufficient cause to place him on compulsory leave of absence and thereafter to dismiss him on the grounds of immoral conduct and evident unfitness for service.

Metcalf, a sixth grade probationary teacher, was convicted of engaging in an act of prostitution (lewd act between persons for money or other consideration--Pen.Code, § 647(b)) on evidence the police obtained in violation of the Fourth and Fourteenth Amendments to the United States Constitution and article I, section 19 of the California Constitution. (People v. Metcalf, 22 Cal.App.3d 20, 98 Cal.Rptr. 925, approved in People v. Triggs, 8 Cal.3d 884, 888, 893--894, 106 Cal.Rptr. 408, 506 P.2d 232.) More specifically, Metcalf engaged in an act of oral copulation early one summer afternoon in a doorless toilet stall in a public restroom in a downtown department store. This incident gave rise to the statutory proceeding before us.

Metcalf contends that his objection on constitutional grounds to the testimony of one of the arresting officers at the trial of the dismissal proceeding, detailing this incident, should have been sustained and that, in any event, the conduct in which he engaged was neither immoral nor did it evince unfitness to serve further as an elementary public school teacher. ¹

Metcalf's first contention squarely poses the issue of whether the exclusionary rule that has long obtained in criminal trials in this state (see People v. Cahan, 44 Cal.2d 434, 282 P.2d 905) should be extended to civil disciplinary trials of this character. The exclusionary rule has long been a part of both federal and state constitutional procedural due process in criminal cases. (See Mapp v. Ohio (1961) 367 U.S. 643, 657, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 1091; People v. Privett, 55 Cal.2d 698, 703, 704--705, 12 Cal.Rptr. 874, 361 P.2d 602.) There appears to be no holding in California regarding whether the exclusionary rule applies in proceedings to dismiss a professional. (See Elder v. Bd. of Medical Examiners, 241 Cal.App.2d 246, 260, 50 Cal.Rptr. 304, cert. denied in 385 U.S. 1001, 87 S.Ct. 701, 17 L.Ed.2d 541; Pierce v. Board of Nursing Etc., Registration, 255 Cal.App.2d 463, 466, 63 Cal.Rptr. 107.) ²

There also seems to be a paucity of authority nationwide as to whether the exclusionary rule is a part of federal and state constitutional procedural due process in civil actions generally. At common law the general rule was to the contrary. The fact that evidence had been improperly obtained did not prevent its admission. (See anno., Supra, 5 A.L.R.3d 670, 672.) Nevertheless, the little authority that does exist is divided on the question of admissibility. (Id., pp. 676--680.)

In California our Supreme Court, however, in the case of In re Martinez, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, dealt with a similar, though not identical, issue. This was whether the Adult Authority in deciding whether to revoke an individual's parole might consider evidence that had been obtained by government officials in violation of both the Fourth and Fifth Amendments to the United States Constitution. (Id., p. 646, 83 Cal.Rptr. 382, 463 P.2d 734.) The touchstone of this opinion appears to be the test enunciated in People v. Moore, 69 Cal.2d 674, 681, 72 Cal.Rptr. 800, 446 P.2d 800, that whether any particular rule of criminal procedure should be applied in another type of proceeding depends upon a consideration of the relationship of the policy underlying the rule to that proceeding. Generally speaking, the policy underlying the exclusionary rule has two aspects. The first and primary one in California is to deter government officials from lawless conduct by denying them a reward for such conduct. (See People v. Cahan, Supra, 44 Cal.2d 434, 445, 449, 282 P.2d 905.) The secondary one is to preserve the integrity of the judicial process by keeping it free of the taint of the use therein of improperly obtained evidence.

There can be no doubt but that the second aspect of the policy underlying the exclusionary rule obtains in both civil and criminal cases. (See Note, Constitutional Exclusion of Evidence in Civil Litigation (1969) 55 Va.Law Rev. 1484, 1488.) There is doubt, though, whether the first and primary reason for the rule exists to any appreciable degree in civil cases. The police in making investigations of suspected criminal activity are, we surmise, generally completely unaware of any consequences of success in their investigative efforts other than the subsequent criminal prosecution of the suspected offender. It was for this reason and also in recognition of the Adult Authority's great responsibility in protecting society from known highly dangerous persons that our Supreme Court did not extend the exclusionary rule to administrative proceedings to revoke parole. (Martinez, supra, 649--650, 83 Cal.Rptr. 382, 463 P.2d 734.)

It is true that in Martinez our Supreme Court carefully pointed out that it was not intimating that the exclusionary rule was not applicable to administrative proceedings generally. But, as the court did in Martinez, in deciding whether the exclusionary rule should apply to the dismissal proceeding before us, we must now consider the purpose of the statute authorizing dismissal of public school teachers for the primary reason involved in this case--that of immoral conduct.

Education Code, section 13556.5, provides that 'Each teacher shall endeavor to impress upon the minds of the pupils (among other things) the principles of morality . . . and to instruct them in . . . morals. . . .' The best type of instruction is by personal example. A teacher in the public school system is regarded by his pupils as an exemplar whose words and conduct are apt to be emulated by his pupils. (See Board of Education v. Swan, 41 Cal.2d 546, 552, 261 P.2d 261, overruled on a different point in Bekiaris v. Board of Education, 6 Cal.3d 575, 588, 100 Cal.Rptr. 16, 493 P.2d 480; Pettit v. State Board of Education, 10 Cal.3d 29, 36, 109 Cal.Rptr. 665, 513 P.2d 889.)

The law has long recognized in many ways that children are entitled to special protection. This is particularly true during the process and period of their compulsory education. (See Ed.Code, § 12101.) In this case Metcalf was with his sixth grade pupils of both sexes generally from 8:30 a.m. to 3:00 p.m. each school day, and once or twice a week in season, on his own, he helped transport children to and from games of football, basketball and baseball. Children of the age of his pupils tend to idolize their teachers. Although the restroom incident involving Metcalf became known only to the district superintendent, his secretary and the principal of Metcalf's school, it was the principal's professional opinion that if the incident ever became known to Metcalf's fellow teachers, his pupils or to parents of those pupils, Metcalf would have been unable to function effectively thereafter as a teacher and his exemplar image would have been destroyed.

This expert opinion of Metcalf's principal in itself might be regarded as sufficient evidence of Metcalf's potential unfitness to teach at the school. (See Pettit v. State Board of Education, Supra, 10 Cal.3d 29, 35--36, 109 Cal.Rptr. 665, 513 P.2d 889.) Aside from this expert evidence, however, Metcalf's performance of the act of oral copulation in a doorless toilet stall in a public restroom in a downtown department store during store hours indicated 'a serious defect of moral character, normal prudence and good common sense' (Id., p. 35, 109 Cal.Rptr. p. 669, 513 P.2d p. 893) and therefore evinced an unfitness to teach.

We recognize that like the criminal law generally a proceeding to dismiss a member of his profession from his position is punitive in character. This is particularly true in the instant case where the proceeding before us forms the basis for a subsequent revocation of Metcalf's teaching...