Newland v. Board of Governors

• Citation: 139 Cal.Rptr. 620,566 P.2d 254,19 Cal.3d 705
• Decision Date: 21 July 1977
• Docket Number: S.F. 23557
• Court: United States State Supreme Court (California)
• Parties: , 566 P.2d 254 William W. NEWLAND, Plaintiff and Appellant, v. BOARD OF GOVERNORS OF the CALIFORNIA COMMUNITY COLLEGES, Defendant and Respondent.

Page 620

139 Cal.Rptr. 620

19 Cal.3d 705, 566 P.2d 254

William W. NEWLAND, Plaintiff and Appellant, v. BOARD OF GOVERNORS OF the CALIFORNIA COMMUNITY COLLEGES, Defendant and Respondent.

S.F. 23557.

Supreme Court of California, In Bank.

July 21, 1977.

David C. Moon, San Francisco, for plaintiff and appellant.

Blease, Vanderlaan & Rothschild, Coleman A. Blease, Marcus Vanderlaan, Michael Rothschild, Sacramento, Morrison & Foerster, Los Angeles, Samuel R. Miller, Oakland, Charles C. Marson, San Francisco, Margaret C. Crosby, Berkeley, Alan L. Schlosser, Peter E. Sheehan, San Francisco, Clifford C. Sweet, Oakland, and Susan M. Spurlark, San Francisco, as amici curiae on behalf of plaintiff and appellant.

Evelle J. Younger, Atty. Gen., and Robert E. Murphy, Deputy Atty. Gen., for defendant and respondent.

TOBRINER, Acting Chief Justice.

When in 1974 plaintiff William Newland, who was educationally well qualified, sought a community college credential, the Board of Governors of the California Community Colleges confronted him with the fact that seven years earlier he had been convicted of a misdemeanor: lewd conduct in a public place (Pen.Code, § 647, subd. (a)). The Board rejected his application on the ground that section 13220.16 of the Education Code barred issuance of a credential to anyone convicted of a 'sex offense' as defined in section 12912--which definition includes violations of Penal Code section 647, subdivision (a)--and refused to conduct a hearing to determine Newland's teaching fitness.

Plaintiff points out that pending appeal of this action section 13220.16 was amended to remove the bar for anyone found fit to teach provided he met three conditions: he had applied for or obtained a certificate of rehabilitation under Penal Code section 4852.01, his probation had been terminated, and the information or accusation had been dismissed under Penal Code section 1203.4. Although plaintiff satisfied the last two of these conditions, defendant board claims that its refusal to certify plaintiff or to grant him a fitness hearing remains proper because plaintiff is ineligible to apply for a certificate of rehabilitation. Such certificates are limited to convicted felons; plaintiff committed only a misdemeanor.

We have concluded, however, that this rather startling statutory preferential treatment for felons as contrasted with misdemeants denies misdemeants the equal protection of the laws. Consequently the statutory requirement for a certificate of rehabilitation cannot constitutionally be applied to deny plaintiff, a misdemeant, a community college credential.

We recount the factual background of this litigation. Plaintiff obtained his bachelor's degree from the University of California at Berkeley in June of 1966; from September 1966 until June 1967 he attended the University of California at Santa Barbara, completing the courses necessary to obtain a teaching credential. During this period he also rendered excellent service as a teaching assistant in the Goleta Union School District. In 1972 plaintiff obtained a master's degree from the University of Hawaii.

The crime for which plaintiff had suffered the severe consequences narrated above consisted of his engaging in an act of masturbation in April of 1967 when alone inside a closed toilet stall at the Greyhound Bus Depot in Hollywood. Unknown to plaintiff, an office at this moment was peering through a small grating on the door to the stall. The officer arrested plaintiff for violating Penal Code section 647, subdivision (a). ¹ Plaintiff's brief states that the grating was about two feet from the floor, and thus that plaintiff's conduct could not have been observed by persons in the rest room going about their own business. ² The record does not indicate, however, whether plaintiff raised the objection that the officer's observations resulted from an illegal search. ³

Convicting plaintiff of violation of Penal Code section 647, subdivision (a), ⁴ the trial court imposed summary probation, terminable upon payment of a $100 fine and $10 penalty assessment. Plaintiff promptly paid the $110 and moved to dismiss the charges purshant to Penal Code section 1203.4. The court granted the motion. Plaintiff thus served no time in jail, and virtually no time on probation.

As we have set forth, on January 8, 1974, plaintiff, having completed the necessary requirements, applied for a community college credential. Defendant board, however, refused to issue the credential or to grant plaintiff a hearing at which he could prove his fitness to teach and thus qualify for a credential. The board based its action on Education Code section 13220.16, which provides that the Board of Governors of the California Community Colleges 'shall' deny a credential to any applicant who has 'been convicted of any sex offense as defined in Section 12912,' ⁵ and Education Code section 12912, which includes among the enumerated sex offense any violation of Penal Code section 647, subdivision (a). ⁶

Plaintiff then filed the instant mandate action to compel defendant board to provide him with a fitness hearing. ⁷ The board demurrer, citing the terms of Education Code section 13220.16. When the demurrer came on for hearing, the superior court, instead of ruling solely on the demurrer, treated the matter as submitted for decision on the pleadings. Upholding the constitutionality of section 13220.16 both facially and as applicable to plaintiff, the superior court enterped judgment denying the petition for mandate.

During the pendency of plaintiff's appeal, the Legislature enacted new subdivision (b) of section 13220.16, effective January 1, 1977. This subdivision provides that 'Notwithstanding paragraphs (2) and (3) of subdivision (a) (which require denial of credentials to persons convicted of listed sex and narcotics offenses), no person shall be denied a credential solely on the basis that he has been convicted of a crime specified in paragraphs (2) and (3) of subdivision (a) if he has obtained or applied for a certificate of rehabilitation under Section 4852.01 and following of the Penal Code, and if his probation has been terminated and the information or accusation has been dismissed pursuant to Section 1203.4 of the Penal Code.'

Defendant concedes that if plaintiff fell within the terms of this subdivision, he could take advantage of its ameliorative effect even though the subdivision took effect during the pendency of his appeal. (See Governing Board of Rialto Sch. Dist. v. Mann. (1976), 18 Cal.3d 819, 829--831, 135 Cal.Rptr. 526, 558 P.2d 1.) Defendant admits also that plaintiff has fulfilled two of the three statutory requirements; the trial court terminated plaintiff's probation, and dismissed the accusation pursuant to Penal Code section 1203.4. The defendant board's refusal to afford plaintiff a fitness hearing therefore now rests solely on plaintiff's failure to apply for or obtain a certificate of rehabilitation.

A certificate of rehabilitation is a document which certifies that its possessor, during a period of at least three years following his release from prison (see Pen.Code, § 482.03), 'has demonstrated by his course of conduct his rehabilitation and his fitness to exercise all of the civil and political rights of citizenship.' (Pen.Code, § 4852.13.) Section 4852.01 specifies the persons who are ineligible to petition for certificates of rehabilitation: 'persons convicted of misdemeanors; . . . persons who have served time in county jails only; . . . persons serving a mandatory life parole; . . . persons committed under death sentences; or . . . persons in the military service.' (Emphasis added.) Since plaintiff was convicted of a misdemeanor, he is ineligible to petition for a certificate of rehabilitation, and consequently has not attempted to do so.

We turn therefore to plaintiff's argument that the statutory requirement for a certificate of rehabilitation denies misdemeanants to equal protection of the law because it discriminates in favor of felons and against misdemeanants. The decisions clearly hold that a legislative classification, such as that involved here, violates the constitutional requirement of equal protection of the law unless it rationally relates to a legitimate state purpose. Neither our cases nor those of the United States Supreme Court have settled on a particular verbal formula to express this proposition. Some decisions require that the classification 'bear some rational relationship to a conceivable legitimate state purpose' (D'Amico v. Board of Medical Examiners (1974), 11 Cal.3d 1, 16, 112 Cal.Rptr. 786, 797, 520 P.2d 10, 21); others that the classification must rest upon 'some ground of difference having a fair and substantial relation to the object of the legislation' (Reed v. Reed (1971), 404 U.S. 71, 75--76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225; Brown v. Merlo (1973), 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212).

We do not find it necessary to determine whether these alternative formulas differ in substance as well as in language, nor to decide which of them is the 'correct' constitutional standard. All of the formulas require the court to conduct 'a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals' (Dorrough v. Estelle (5th Cir. 1974), 497 F.2d 1007, 1011); as we shall explain such an inquiry will suffice to demonstrate the unconstitutionality of the classification in question in the present case. ⁸

As the foregoing authorities indicate, our inquiry must begin with an identification of the purpose of section 13220.16 so that we may determine whether the statutory classification denying plaintiff a community college credential rationally relates to that purpose. (See Craig v. Boren (1976), 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397; Weinberger v. Wiesenfeld (1975), 420 U.S. 636, 648, 95 S.Ct. 1225, 43 L.Ed.2d 514.) In that connection we...