Jennings v. Karpe

• Decision Date: 14 January 1974
• Court: California Court of Appeals Court of Appeals
• Parties: Frank De Hart JENNINGS, Plaintiff and Appellant, v. Robert W. KARPE, Real Estate Commissioner, State of California, Defendant and Respondent. Civ. 32513.

Page 776

111 Cal.Rptr. 776

36 Cal.App.3d 709

Frank De Hart JENNINGS, Plaintiff and Appellant, v. Robert W. KARPE, Real Estate Commissioner, State of California, Defendant and Respondent.

Civ. 32513.

Court of Appeal, First District, Division 1, California.

Jan. 14, 1974.

Joel G. Schwartz, Community Legal Services, San Jose, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen. of Cal., John E. Barsell, Jr., Deputy Atty. Gen., San Francisco, for defendant and appellant.

ELKINGTON, Associate Justice.

Appellant Jennings was a licensed real estate salesman. His license, and all right to renew or reinstate it, were ordered revoked by the state's Real Estate Commissioner under the authority of Business and Professions Code section 10177, subdivision (b).

Section 10177, subdivision (b), authorizes such a revocation when a licensee has entered a plea of guilty to 'a felony or a crime involving moral turpitude, . . .'

The record on which the commissioner's order was based established the following. Jennings pleaded guilty to a charge of violating Penal Code section 288a, proscribing oral copulation of the mouth of one person with the sexual organ of another. He was thereafter placed on conditional probation. The subject of the offense jwas an eight-year-old daughter of Jennings with whom he had committed such offenses over a period of three years.

The instant appeal is from a superior court judgment denying Jennings' petition for a writ of mandate by which he sought to set aside the commissioner's order.

The threshold question presented to us is whether the offense to which Jennings pleaded guilty was a 'felony or a crime involving moral turpitude.'

Certainly the offense was a felony. It was punishable by imprisonment in the state prison and it was not reduced to a misdemeanor by any act of the court. (See Pen.Code, §§ 288a and 17, subd. (a).)

An accepted definition of 'moral turpitude' is "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowman, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.' . . .' (In re Higbie, 6 Cal.3d 562, 569, 99 Cal.Rptr. 865, 869, 493 P.2d 97, 101.) Under this definition Jennings' conduct with his daughter clearly was a 'crime involving moral turpitude.' The commissioner made such a finding. ^*

Jennings' main reliance is on certain language of Tushner v. Savage, 219 Cal.App.2d 71, 76, 33 Cal.Rptr. 247, 250, as follows: 'In order for the Real Estate Commissioner to have jurisdiction to revoke a real estate broker's license, the licensee must have been guilty of misconduct connected with his activities as a real estate broker. . . .'

But Tushner v. Savage assigned as authority for its holding, Buckley v. Savage, 184 Cal.App.2d 18, 26, 7 Cal.Rptr. 328 (cert. den., 366 U.S. 910, 81 S.Ct. 1086, 6 L.Ed.2d 235), and Schomig v. Keiser, 189 Cal. 596, 598, 209 P. 550. Those authorities dealt with statutes not at issue in Tushner v. Savage, or in the case before us. They concerned Business and Professions Code section 10176 and its predecessor statute (Stats.1919, ch. 605, § 12, p. 1256), which provided for licensee discipline For acts done in the capacity of a licensee. In such situations, it necessarily followed that jurisdiction attached only when the licensee's acts were 'connected with (their) activities as real estate (licensees).' And we note that Buckley v. Savage, supra, made it clear (184 Cal.App.2d p. 31, 7 Cal.Rptr. p. 337) that section 10177, with which we are here concerned, 'allows disciplinary action against real estate brokers for their conduct in other fields of endeavor.'

Other California cases have held that the Real Estate Commissioner's licensees may be disciplined for Misconduct unrelated to their activities as such licensees. License revocation has been upheld, as to such unrelated activities, where the licensee was guilty of 'personal dishonesty' (Small v. Smith, 16 Cal.App.3d 450, 94 Cal.Rptr. 136); fraud in obtaining personal loans (Borror v. Department of Investment, 15 Cal.App.3d 531, 92 Cal.Rptr. 525); violation of Corporate Securities Act (Watkins v. Real Estate Commissioner, 182 Cal.App.2d 397, 6 Cal.Rptr. 191); and improper acts before issuance of the license (Grand v. Griesinger, 160 Cal.App.2d 397, 325 P.2d 475; Karrell v. Watson, 116 Cal.App.2d 769, 775--776, 254 P.2d 651, 255 P.2d 464; Hall v. Scudder, 74 Cal.App.2d 433, 437, 168 P.2d 990).

Similar determinations have been made as to state licensees in other fields of endeavor. Thus, an attorney was suspended upon his plea of guilty to violating the federal marijuana transfer tax law, i.e., smuggling marijuana (In re Higbie, supra, 6 Cal.3d 562, 99 Cal.Rptr. 865, 493 P.2d 97), and a teacher's credentials were revoked for homosexual conduct in a public restroom (Moser v. State Bd. of Education, 22 Cal.App.3d 988, 101 Cal.Rptr. 86).

Apart from Tushner v. Savage, supra, 219 Cal.App.2d 71, 33 Cal.Rptr. 247, which we find not to be controlling, Jennings places his principal reliance on Morrison v. State Board of Education, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375, Perrine v. Municipal Court, 5 Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648 (cert. den., 404 U.S. 1038, 92 S.Ct. 710, 30 L.Ed.2d 729), Yakov v. Board of Medical Examiners, 68 Cal.2d 67, 64 Cal.Rptr. 785, 435 P.2d 553, Comings v. State Bd. of Education, 23 Cal.App.3d 94, 100 Cal.Rptr. 73, and Mindel v. United States Civil Service Commission, D.C., 312 F.Supp. 485. But we find these authorities also to be inapposite. In none, except perhaps Perrine v. Municipal Court, was the subject charged under a statute, as here, authorizing discipline upon conviction of 'a felony or a crime involving moral turpitude.'

Perrine v. Municipal Court's holding rested principally on First Amendment considerations not present here. The court, however, did say (5 Cal.3d p. 663, 97 Cal.Rptr. p. 324, 488 P.2d p. 652): 'Even in the absence of First Amendment considerations, an ordinance regulating the right to engage in a lawful occupation or business (there, bookselling) must bear a rational relationship to a valid governmental purpose. . . .' But there is 'a valid governmental purpose' in limiting...