Unzueta v. Ocean View School Dist.

• Decision Date: 04 June 1992
• Docket Number: No. B058873,B058873
• Citation: 8 Cal.Rptr.2d 614,6 Cal.App.4th 1689
• Court: California Court of Appeals Court of Appeals
• Parties: , 74 Ed. Law Rep. 1202 Simon UNZUETA, Petitioner and Respondent, v. OCEAN VIEW SCHOOL DISTRICT, Respondent and Appellant. Civ.

Page 614

8 Cal.Rptr.2d 614

6 Cal.App.4th 1689, 74 Ed. Law Rep. 1202

Simon UNZUETA, Petitioner and Respondent, v. OCEAN VIEW SCHOOL DISTRICT, Respondent and Appellant.

Civ. No. B058873.

Court of Appeal, Second District, Division 6, California.

June 4, 1992.

As Modified on Denial of Rehearing June 26, 1992.

Review Denied Aug. 20, 1992.

Lawler, Bonham & Walsh, and Donald F. Austin, Oxnard, for respondent and appellant.

Kronick, Moskovitz, Tiedemann & Girard, and Donna Matties, Sacramento, as amici curiae on behalf of respondent and appellant.

Hathaway, Perrett, Webster, Powers & Chrisman, and Paul D. Powers, Ventura, for petitioner and respondent.

A. Eugene Huguenin, Jr., Beverly Tucker, Diane Ross, Burlingame, and Ramon E. Romero, Washington, D.C., as amici curiae on behalf of petitioner and respondent.

YEGAN, Associate Justice.

In 1935 Judge Learned Hand asked: "How far is a judge free in rendering a decision?" (Hand, The Spirit of Liberty (1952).) Judge Hand did not answer the question but did put the judicial dilemma in perspective by saying: "So you will see that a judge is in a contradictory position; he is pulled by two opposite forces. On the one hand he must not enforce whatever he thinks best; he must leave that to the common will expressed by the government. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed. Nobody does this exactly right; great judges do it better than the rest of us. It is necessary that someone shall do it, if we are to realize the hope that we can collectively rule ourselves. And so, while it is proper that people should find fault when their judges fail, it is only reasonable that they should recognize the difficulties. Perhaps it is also fair to ask that before the judges are blamed they shall be given the credit of having tried to do their best. Let them be severely brought to book, when they go wrong, but by those who will take the trouble to understand." (Id., at pp. 109-110.) Today we twice confront this dilemma.

We conclude that the trial court correctly found that Simon Unzueta was entitled to back-pay but incorrectly refused to offset the amount by his earnings during the suspension period.

The First Dilemma

The Ocean View School District (District) appeals from the trial court's writ of mandate ordering it to pay its teacher, Unzueta, approximately $40,000 in back-pay. This amount of money represents Unzueta's salary for the period of time he was suspended by the District.

While employed as a teacher for the District, Unzueta was arrested and charged with simple possession and use of cocaine. (Health & Safe Code, §§ 11350, subd. (a), 11550, subd. (a).) Without being required to do so, the District suspended Unzueta from his teaching position pursuant to Education Code section 44940, subdivision (e) which, in pertinent part provides: "Whenever any certificated employee ... is charged with an optional leave of absence offense [here, simple possession and use of cocaine, see Education Code sections 44940 subdivision (b), 44011 subdivision (a) ] ... the governing board ... may immediately place the employee upon compulsory leave in accordance with the procedure in this section and Section 44940.5." (Emphasis added.) Phrased otherwise, the District exercised its discretion in suspending Unzueta.

Pursuant to Penal Code section 1000 et seq., Unzueta satisfactorily completed a drug diversion program for first time offenders.

"Penal Code sections 1000 to 1000.4, enacted in 1972, authorize the courts to 'divert' from the normal criminal process persons who are formally charged with first-time possession of drugs, have not yet gone to trial, and are found to be suitable for treatment and rehabilitation at the local level. The purpose of such legislation, which has ... been adopted with variations in several of our sister states, is two-fold. First, diversion permits the courts to identify the experimental or tentative user before he becomes deeply involved with drugs, to show him the error of his ways by prompt exposure to educational and counseling programs in his own community, and to restore him to productive citizenship without the lasting stigma of a criminal conviction. Second, reliance on this quick and inexpensive method of disposition, when appropriate, reduces the clogging of the criminal justice system by drug abuse prosecutions [Fn. omitted] and thus enables the courts to devote their limited time and resources to cases requiring full criminal processing. [Citations.]" (People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61-62, 113 Cal.Rptr. 21, 520 P.2d 405.)

The charges against Unzueta were dismissed pursuant to Penal Code section 1000.3 which in pertinent part provides: "If the divertee has performed satisfactorily ... the criminal charges shall be dismissed." (Emphasis added.)

Upon resumption of his former teaching position, Unzueta petitioned the trial court for a writ of mandate to compel the District to pay him approximately $40,000 for approximately two years back-pay pursuant to Education Code section 44940.5, subdivision (c). We presume that but for his experiment with cocaine, Unzueta was an otherwise competent school teacher that the District wanted to employ.

Penal Code section 1000.5 states, in pertinent part, that "[u]pon successful completion of a diversion program the arrest upon which the diversion was based shall be deemed to have never occurred. The divertee may indicate in response to any question concerning his prior criminal record that he was not arrested or diverted for such offense. A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the divertee's consent, be used in any way which could result in the denial of any employment, benefit, license, or certificate." (Emphasis added.)

Education Code section 44940.5, subdivision (c) states, in pertinent part, "... if the employee is acquitted of the offense, or the charges against him ... are dismissed, the school district shall pay to the employee his ... full compensation for the period of the compulsory leave of absence upon his ... return to service in the school district." "As a remedial statute, it must be liberally construed 'to effectuate its object and purpose, and to suppress the mischief at which it is directed.' [Citation.]" (Ford Dealers Assn. v. Department of Motor Vehicles (1982) 32 Cal.3d 347, 356, 185 Cal.Rptr. 453, 650 P.2d 328; see also Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 243, 5 Cal.Rptr.2d 782, 825 P.2d 767.) While not stated in so many words, the "mischief" at which Education Code section 44940.5 subdivision (c) is directed carries the connotation that the school district has unlawfully or erroneously suspended the teacher. We recognize that at the time of the suspension, the District did not unlawfully or erroneously suspend Unzueta. It was only through the legal fiction of Penal Code section 1000.5 that the arrest was "... deemed to have never occurred."

In response to the District's invitation to use its equity powers to nullify the effect of the statutes, the trial court said: "I can't rewrite the law.... I have to follow the statute." The trial court posited the following hypothetical: "What if he were charged with a crime and he spent two years in custody and the matter was delayed for one reason or another, time was waived, and he ... was acquitted?" The District's counsel responded: "In that case the result would be he would get his two years' of income." There is no legal difference between the trial court's hypothetical and the situation where the criminal case is dismissed pursuant to Penal Code section 1385 or, in the instant case, dismissed pursuant to Penal Code section 1000.3.

There are situations when criminal cases are dismissed pursuant to Penal Code section 1385 and the "equities" are less than presented here, e.g., when the defendant provides information in criminal cases against third parties, when essential witnesses are not available for trial, when crucial evidence is suppressed or excluded resulting in the People's inability to proceed, or when there is a deprivation of right to speedy trial. In these instances, the moral culpability is greater than the situation where the defendant is rehabilitated pursuant to the legislative direction and the case is dismissed. Yet it seems beyond question that where a defendant is a school teacher in these hypothetical situations, he or she would be entitled to back-pay. A dismissal is a dismissal. There is no requirement that the dismissal be "worthy."

Education Code section 44940.5 subdivision (c) must be read in pari materia with criminal dismissal statutes since it makes express reference thereto. " 'A statute must be construed "in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts." [Citation.]' " (In re Hull (1991) 1 Cal.4th 266, 272, 2 Cal.Rptr.2d 526, 820 P.2d 1036.) This principle applies even though the two provisions are in separate codes. (Building Material & Construction Teamsters' Union v. Farrell (1986) 41 Cal.3d 651, 665, 224 Cal.Rptr. 688, 715 P.2d 648; Tripp v. Swoap (1976) 17 Cal.3d 671, 679, 131 Cal.Rptr. 789, 552 P.2d 749.)

When Penal Code section 1000.5 and Education Code section 44940.5 subdivision (c) are read in pari materia, an expression of legislative intent emerges: a suspended teacher is entitled to back-pay upon reinstatement after dismissal of the criminal case which lead to the suspension. In fact dismissal, pursuant to Penal Code section 1000.3 and the broad language of Penal Code section 1000.5, that the arrest "... shall be deemed to have never occurred ... [and the record of arrest] shall not ... be used ... in any way ..." provides greater protection than...