Vogulkin v. State Bd. of Ed.

• Court: California Court of Appeals
• Writing for the Court: McCABE; DRAPER, Acting P. J., and SHOEMAKER
• Citation: Vogulkin v. State Bd. of Ed., 15 Cal.Rptr. 335, 194 Cal.App.2d 424 (Cal. App. 1961)
• Decision Date: 31 July 1961
• Parties: Nicholas C. VOGULKIN, Plaintiff and Appellant, v. STATE BOARD OF EDUCATION of the State of California, Commission of Credentials of the State of California, Defendants and Respondents. Civ. 19638.

Page 335

15 Cal.Rptr. 335

194 Cal.App.2d 424

Nicholas C. VOGULKIN, Plaintiff and Appellant, v. STATE BOARD OF EDUCATION of the State of California, Commission of Credentials of the State of California, Defendants and Respondents.

Civ. 19638.

District Court of Appeal, First District, Division 2, California.

July 31, 1961.

Hearing Denied Sept. 20, 1961.

John R. Golden, Richard H. Perry, Varnum Paul, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Wiley W. Manuel, Deputy Atty. Gen., for respondent.

McCABE, Justice pro tem.

By his complaint, plaintiff alleges he held teaching credentials in the State of California from January 1, 1939, to about April 30, 1958, and was during that time employed by the San Francisco Unified School District. On about March 6, 1958, plaintiff was arrested and charged with a violation of section 702, Welfare and Institutions Code; the precise subsection is not described but all parties have presented the matter as a crime falling within the provisions of section 12912, Education Code. After a preliminary hearing, plaintiff was bound over for trial. On June 18, 1958, plaintiff entered a plea of guilty to the charges and was granted probation. In the interim period and on April 30, 1958, in anticipation of defendant state board invoking the provisions of section 13207, Education Code, plaintiff requested voluntary revocation of his teaching credentials which request was granted by defendant state board on May 1, 1958. On November 23, 1959, upon plaintiff's motion, the Superior Court of the City and County of San Francisco terminated plaintiff's probation, set aside his plea of guilty and ordered the information dismissed. On the same day, plaintiff filed with defendant commission of credentials an application 'for reinstatement, reissuance or issuance' to him of his teaching credential. Accompanying this application was a letter from plaintiff's attorney requesting defendant state board to set the application for hearing and asserting the unconstitutionality of sections 12912 and 13130, Education Code. Defendant commission of credentials met in December, 1959, and January, 1960. Not having heard from the defendant commission, plaintiff's attorney, by letter, requested information as to the disposition of plaintiff's application. No reply was received. Later, on February 9, 1960, plaintiff, by telegram, requested advice as to the status of his application, to which no reply was received. Plaintiff alleges he has exhausted his administrative remedies.

Plaintiff by his action seeks (1) to enjoin defendant State Board of Education of the State of California and the Commission of Credentials of the State of California from enforcing the provisions of sections 12912, 13207 and 13130, Education Code, (2) a declaration that these sections are unconstitutional as violative of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States and of the constitutional provisions of the State of California, and (3) an order directing defendant state board to conduct a hearing to determine plaintiff's fitness to teach in the public schools of this state.

To the complaint, defendants entered a general demurrer which was sustained without leave to amend. From the judgment entered against him, plaintiff appeals.

Plaintiff's brief reveals his sole attack on this appeal is as to the constitutionality of the classification which denies him the right to a hearing upon an application for a credential to show he had been rehabiliated. He contends (1) it is constitutionally incompetent for the legislature to base a classification of the capacity or incapacity for rehabilitations of convicted persons upon those crimes set forth in the Education Code sections, (2) the classification would not be reasonably calculated to protect public school children from sex offenders, and (3) there is no natural or intrinsic distinction between persons convicted under the various statutes justifying imposition of burdens on some and not on others.

It is to be noted that in April, 1958, plaintiff voluntarily requested the defendant state board to revoke his teaching credential. Therefore, upon this request being made, of course, defendant state board could take no other action (Ed.Code § 13205).

'Revoke' means to annul or make void by recalling or taking back, cancel, rescind, repeal, reverse (see Black's Law Dictionary, 4th Ed.; O'Hagan v. Kracke 165 Misc. 4, 300 N.Y.S. 351). No vestige of this credential remained in plaintiff.

The application filed by plaintiff with defendant commission of credentials on November 23, 1959, must be considered as an original application for a teaching credential. Plaintiff concurs in this position since in the November 2o, 1959, letter to the defendant commission, he states, 'However, this is * * * an application for the issuance of a credential. * * *'

Section 13130, Education Code, providing for a denial of an application of sexual psychopath or sex offender reads as follows:

'The State Board of Education shall deny any application for the issuance of a credential or a life diploma or for the renewal of a credential made by any applicant who has been determined to be a sexual psychopath under the provisions of Chapter 4, Part 1, Division 6 of the Welfare and Institutions Code or under similar provisions of law of any other state or who has been convicted of any sex offense as defined in Section 12912.'

Since section 13130, supra, refers to section 12912, applicable portions of the same code are set forth:

"Sex offense' as used in Sections 13130 * * * of this code means any offense defined in Sections 266, 267, 285, 286, 288, 288a, 647a, subdivision 3 or 4 of Section 261, subdivision 5 of Section 647, or subdivision 2 of Section 311 of the Penal Code; or any offense defined in subdivision 1 of Section 311 of the Penal Code committed on or after the effective date of the amendment of this section made at the 1955 Regular Session by the Legislature; or any offense involving lewd and lascivious conduct under Section 702 of the Welfare and Institutions Code * * *'

Plaintiff seeks to interject such provisions of the Education Code as sections 13206, 13207, 13208, but these do not solve the problem nor lend support to plaintiff's position since these sections refer to the authority of the state board of education to suspend and/or revoke an existing teaching credential upon conviction of certain defined offenses or when the holder of a credential is determined to be a sexual psychopath. None of these sections is applicable here. Since plaintiff has applied for a credential, the matter is to be considered under section 13130 and allied sections. However, plaintiff uses these sections to illustrate that in certain types of crimes, a holder of a credential or a holder of a right under a suspended credential has the possibility of a hearing for reinstatement of his credential. His position is that under those sections wherein there is a right to a hearing, there are situations in which the holder has been convicted of an act of like nature to his and the holder of such a credential is entitled to a hearing but he is not, since his crime falls within the prohibition of those set forth in section 12912.

In DiGenova v. State Board of Education, 45 Cal.2d 255, 288 P.2d 862, the Supreme Court decided that the state board of education did not have to hold a hearing to revoke the teaching credentials where the holder of the credentials had been convicted of a crime described in sections 12011.7 and 12756 (now 12912 and 13207 respectively). With this, plaintiff does not quarrel but contends that where there is an application for a credential, the interpretation given in the DiGenova case should not prevail. It is difficult to justify plaintiff's position. If the board has a mandatory duty under section 13207 to revoke when the holder of a credential is convicted of a crime described in section 12912, why doesn't the board have a mandatory duty to deny an application under section 13130 when the applicant has been convicted of a crime described in section 12912 and which section is incorporated by reference in section 13130? There can be no distinction made between the two situations particularly when the two sections use the same terminology. Section 36, Education Code, provides that "Shall' is mandatory and 'may' is permissive.' The legislature has declared its intention as to the construction of these words when used in the provisions of the Education Code.

Plaintiff contends that section 13130, Education Code, denies an equal protection of the law since it requires a mandatory revocation of a credential without a hearing and the holder of a credential can never be rehabilitated so as to qualify for another credential, whereas other holders or former holders of a credential not coming within the purview of section 13130, supra, and who are convicted of acts similar to that committed by him can apply for a reinstatement and/or a new certificate. Plaintiff believes that the classification of crimes set forth in section 12912 is unreasonable and arbitrary.

'* * * [T]he test for determining the validity of a statute where a claim is made that it unlawfully discriminates against any class is substantially the same under the state prohibitions * * * and the equal protection clause of the federal Constitution' (Los Angeles County v. Southern Cal. Tel. Co., 32 Cal.2d 378, 389, 196 P.2d 773, 781).

There is a presumption in favor of the classification based upon legislative experience. It will not be declared unconstitutional unless it is plainly arbitrary (Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281).

The school children of our land are the future of the nation. The innocent mind in a formative state is subject to the immediate influences surrounding the child. The material he is taught, the...