*1 Jan. No. 20720. Bank. F. 1962.] [S. DiGENOVA, Respondent, THE Plaintiff
ANTHONY al., et BOARD OF EDUCATION Defendants STATE Appellants. *3 Deputy Attorney Stanley General, Lee Mosk, Stanton, B. City Irving Attorney, Attorney Holm, R. General, Dion Appellants. Breyer for Defendants and G. Respondent. for Plaintiff and
Leon E. Shiells Kenny, Stephen J. Ibanez, W. Kenny, Morris & Robert McCarthy as Young, Zetterberg, Henrie & Zetterberg and *4 Respondent. and of Plaintiff Amici behalf Curiae judgment appeal a which from GIBSON, Defendants C. J. directing granted peremptory the State a writ of mandate a plaintiff’s credentials as of Education reinstate City and of requiring the Board of Education and teacher
171 County plaintiff position of Francisco to reinstate San to his public in schools of His San Francisco. credentials were position theory he was from revoked and dismissed his on the required that this action was sections added to the Educa- July general in prohibit tion as of which Code effective 2,1952, employment in schools of of convicted specified in certain sex offenses defined sections of the Penal (Stats. 1953, Code.1 Code and the Welfare and Institutions 1952, p. 25, 389.) principal question 1st Ex. Sess. ch. presented appeal legislation on this is whether the is to be applied retrospectively person prior a to its enactment. years adoption six 1945, December over before
legislation, plaintiff charged Municipal was of Court Angeles the Los District with misdemeanor, Judicial “a vagrancy lewd,” pleading and, guilty, wit: after was sentenced paid Although a fine of the docket of $50. the criminal trial not disclose whether the was for does conviction violation may a statute referred to in the 1952 assume, we legislation, pleadings here, view of the that it for violation one statutes, namely, of section those subdivision 5 647 provided every which, time, “idle, Penal at Code or or or associate of known lewd, person, dissolute thieves” was guilty vagrant of a misdemeanor.2 January plaintiff general elemen- Prior to 1949 received question 1959, 1The sections were renumbered they opinion by in this their will be referred to new numbers. “ provides: Section 12912 of the Education Code 'Sex offense’ as used in Sections and 13586 this code any 266, 267, 285, 286, 288, 288a, 647a, means defined in offense Sections 4 of subdivision 3 or Section subdivision 5 Section or sub- Code; any division subdivision 1 of Section of Section 311 of the Penal or offense defined the Penal Code on or committed after the effective date of amendment section made at the Regular any Legislature; involving Session or offense lewd and lascivious conduct under Section of the Welfare and Institutions Code; any attempt any offenses; or to commit of the above-mentioned any attempted which, committed or offense if other state com- attempted State, punishable mitted or in this would have been as one ’’ or more of the above-mentioned offenses. pertinent The other sections added 1952 will be set forth later. May plaintiff violating 2In was convicted of 41.10 of section City Angeles, prohibited person ordinance 77000 of the of Los renting understanding a room with the or belief the room is person to be used purposes, to whom is rented certain in cluding conviction, however, bearing upon lewd conduct. This has no present ease because the statutes involved here do not direct manda tory teaching revocation credentials or dismissal from for violations of ordinances. *5 172 than three credential, month, more tary and in legislation he was
years question, enactment before by Unified the San Francisco School employed as teacher teacher acquired tenure and remained He District. teaching special A cre- his until the date dismissal. district on was by him in 1951 renewed to the state dential issued April 30, 1953. plaintiff’s con- the fact of not when The record does show notice without discovered, was dismissed was but he viction were September 28, 1953, and his credentials hearing or on mandate, petition filed for 29. His on October revoked December against part taken 1953, alleged in action hearing. it notice was without was because him invalid ground, we plaintiff Judgment was entered hearing required. holding no notice or was reversed, 45 (1955) Cal.2d (DiGenova Board Education v. State held in Fountain Subsequently it was 862].) 255 P.2d [288 Cal.App.2d 463 (1958) 157 Education [320 State court) by this that the (hearing denied P.2d 899] apply retrospectively here not intended involved was date prior the effective offense a sex judgment rendering of the statute. In rule taken, the trial court followed present appeal was ex- held that defendants Fountain case and down laid revoking plaintiff’s credentials jurisdiction in ceeded their employment. terminating his provided specifically
It is in three of our basic codes part expressly that no thereof is retroactive “unless so de (Civ. Code, 3 ; 3 ; § 3.) clared.” Code Civ. Proc., Code, Pen. § § originally developed is a rule of by This construction People 9, v. Harmon, In 54 courts. Cal.2d 25 P.2d [351 329], Code, supra, that section 3 the Penal was said “is ‘general statutory a restatement of but rule construction’ (Von Huntington (1850) 55, 65) recognized 1 Schmidt v. Cal. their Code Commissioners citation of that and ’’ appear Cate, kindred cases. Similar statements re 207 443, 448-449 131], P. Estate 188 Potter, Cal. [279 language 55, Accordingly, P. where Cal. 65 [204 826]. clearly Legislature has not shown that retroactive used against application intended, con the rule retroactive uniformly applicable has been held codes or struction acts containing provision forth in Code, set the Civil (State Procedure, and the Penal Code. v. Indus Code Civil 355, 361-362 P.2d Com., trial 1] Acc. 48 Cal.2d [310 [Labor
173
Code] ;
Surety
Com.,
Cas. &
Co. v. Industrial
Aetna
Acc.
30
Code] ;
393-395
Krause v.
388,
[182
159] [Labor
Rarity,
210 Cal.
655-656
P.
77 A.L.R.
[293
1327]
Cate,
Act] ;
California
In re
Vehicle
Cal.
448-
[former
Potter,
Act] ;
P.
Bar
Estate
188 Cal.
[279
131] [State
Act] ;
65, 68
P.
Inheritance Tax
[204
826] [former
Gibb,
Chambers v.
Cal.
P.
[198
1032] [former
;
Inheritance Tax
460-
Willcox v.
Cal.
*6
Edwards,
Act]
276,
P.
to the
Ann.Cas. 1913C
[123
[amendment
1392]
;
Davis,
Bascomb
Cal.
Constitution]
[federal
;
(1865)
Gates v. Salmon
28 Cal.
321-323
act]
[former
Act].)
Practice
statutory pro
It is thus
that the absence
the
clear
including
statutes,
vision from other
and
the Education
codes
respect
Code,
not
to
enactments
does
indicate that with
those
Legislature
against
rejected
the
has
the rule
a retroactive
applicable. The
construction or that some
rule is
different
applied
respect
statutes,
rule to
all
and
be
is the same with
to
expressly
Legislature
none
them is
the
has
retroactive unless
so declared.
The statement in the Education
pro
Code that its
liberally
visions are to be
construed with the view to effect
objects
promote
its
justice
and
(§2)
interpreted
cannot be
as a
declaration that
of its
given
sections is to be
retro
Surety
active effect. Aetna Cas. &
Co. v. Industrial Acc.
Com.,
the with extending courts the their benefits for protection persons the injured in the course of their em ployment.” argued It was that view of this declaration and holding decisions that all reasonable doubt must be resolved in favor employees, given the amendment should be application. rejecting argument, retroactive this opinion p. (30 authority Aetna 395) stated Cal.2d at “No (cid:127). is cited for require this novel doctrine which would court ignore against operation rule respect retroactive increasing statutes benefits to favored remedial legislation. The rule liberal construction and the rule that ordinarily operate prospec statutes should be construed tively mutually are neither inconsistent nor They exclusive. aspects interpretation relate to different of statutes, and including in most codes, are found the Labor Code. (Civ. Code, Code, 4 ; Proe., 3, 4 ; Code Civ. Pen. §§ §§ Code, 3202.) peculiar 4 ; Lab. It would be most §§ §§ judicial reasoning allow be which would one such doctrine to purpose destroying the It for the invoked other. therefore, legislative that the seems intent in favor clear, retrospective implied of a operation statute be cannot subject from the mere that the statute and fact is remedial to the rule liberal construction.”3 Com., State v. Industrial 361-362 Acc. [310 question also an 1], involved the whether amendment compensation provisions of the Labor Code workmen’s pointed It was retroactive. was there out nowhere be amendment declared that it should had given operation, retroactive court concluded retroactivity notwithstanding fact unsound claim of character curative in that the was remedial and findings legislative con declarations and was based inequity public policy and the cerning welfare prior to the amendment. existing under the law given statute is to therefore that no It is settled expressly de Legislature has so effect unless the retroactive by requirement that rule is limited clared and *7 objects pro liberally to effect its and a be construed statute justice. mote the provisions of the of now consideration We come retroactively by applied defend- legislation which were 1952 ants in plaintiff’s revoking credentials. provides: “Whenever of Code the Education Section any or document issued credential, diploma, life the holder any been convicted of Education has by the Board State 12912, the State in as defined Section sex offense diploma, suspend credential, life the forthwith shall Education is holder and the is reversed If the conviction document. or charges against the trial or in new acquitted of the offense the terminate him dismissed, forthwith the board shall are diploma, When or document. suspension life credential, that the Code, to show the Aetna case cited 4 of the Labor 3Section notwithstanding operative against construction rule retroactive construction, the Educa is to section identical liberal the rule of tion Code. These before proceeding provide: commenced or “No action sections right accrued, the effect, is affected no this code takes shall procedure taken therein code, thereafter provisions but this all ’ possible.' provisions so as code far conform imposition final or when the conviction becomes of sentence suspended credential, is board the shall forthwith revoke diploma, or life document.”4 quoted section, as a whole,
The
considered
shows
plan
suspending
immediately upon
of first
credentials
con
then,
occurring
subsequent
after
viction and
to events
revoking
enactment,
them,
plan
effective date of the
and this
applicable
would not be
prior
to convictions which became final
appears
prelimi
to 1952.
from the first
As
sentence the
nary step
only
suspension,
course,
which,
could occur
after the effective date of the
must
enactment,
be taken
“forthwith” after conviction. The second
shows that
sentence
subject
the convictions
are
after the
referred to
reversal
by acquittal
enactment,
effective date of
followed
or
dis
contemplates
charges.
missal
last sentence
that revo
place only
respect to
cation of credentials shall take
with
cases in which a
final or in
conviction “becomes”
which im
position
occurring
suspended,”
of sentence “is
events
i.e.,
language
after
“has
enactment of
the section. The
(in
present perfect tense),
appears
been
convicted”
helpful
section,
the first sentence of
is
deter
mining
question
retroactivity.
is a
The act
direction to
persons
administering
charged
it,
with
when viewed
being applied
quoted
as of
is
the time
act
words can
readily
as
either as “has
understood
been convicted after
the effective
or
been
date
act”
as “has
convicted before
Nothing
or after
date of
act.”
the effective
section
points
certainly
application,
in the direction of retroactive
express
language
an
none of its
declaration that
constitutes
operate retroactively.
the statute should
relating
Section 13255,
provides:
certified employees,
“Governing boards of school
employ
districts shall not
retain
who
service
any
have been convicted of
offense
defined
Section
however,
12912.
If,
conviction is reversed and the
person
acquitted
of the offensein a new
charges
trial or the
against
dismissed,
him are
this section
prohibit
does not
his
employment thereafter.”5
applicable
plaintiff
4Section
which is not
because it deals
suspension
by county
county-issued
and revocation
boards of
cer
*8
tificates,
language
contains
in
similar
to that
found
section 13207.
language
inapplicable
5Similar
is
it
in
contained
section
which is
plaintiff
employees,
i.e.,
because
relates to “classified”
in
those
positions
requiring
qualifications.
not
certification
approach
pattern
some
13255 shows
Section
operation
in that the
taken
section 13207
what like
one
occurring
is
events
after
effective
of this section affected
by acquittal.
act,
followed
As
of the
such as reversal
date
in section
of the
“has been convicted”
the case
words
way
13255 in no
been
section
the words “have
convicted”
retroactively.
provisions apply
that
indicate an intent
phrase
“retain
suggested
an
Such
intent
only
applies
to those
employment”;
act
shows
employed
when convicted as well as
schools
Again nothing in
seeking
after conviction.
those
application,
points in the
of retroactive
the section
direction
retroactivity as
express
contain an
declaration
nor does it
required by the
law of this state.
settled
course,
acquainted
Legislature,
is well
The
operate
it intends a statute
rule, and when
this fundamental
accomplish
purpose.
language to
retroactively it uses clear
Code, which, like the
290 of the Penal
example, section
For
consequences of con
legislation
relates
collateral
before us,
provided from the time
offenses,has
certain
victions
the first
person who, “since
enactment
its
of the
convicted”
or is hereafter
day
July, 1944, has been
police
register
chief of
with the
offenses shall
enumerated
(i)
Similarly, in 1955 subdivision
he resides.
or sheriff where
provide
Code to
of the
Education
to section
was added
mandatory
of credentials
denial
rather than
permissive
for
311 of the
1 of section
violating subdivision
for convictions
effec
occurring “prior to the
exposure)
(indecent
Code
Penal
provision.6
of the
tive date”
reports
Assembly
invoke
Defendants
Sub
(one
Crimes
made before and the other
committee
Sex
at
legislative
question
which the statute in
after the
session
enacted)
intended that the 1952
to show
was
reports,
a retroactive
how
provisions should have
effect. Such
statutory
supplant the established
and common-
ever, cannot
provision
no
of a
is retroactive
requirement that
statute
law
necessary
change it
to amend section
6In
view of
exposure
for
which,
of indecent
included convictions
as enacted
Accordingly, by
mandatory
purposes
us.
com
before
amended,
panion
violations
13912 was
insofar as concerns
measure section
only
Code,
the Penal
to refer
to offenses
of section
of subdivision
of
the
of this
or after
date
the amendment
"on
effective
committed
Regular
Legislature.
Session
..."
at the 1955
section made
special purpose
quoted language
section 12912 for
was added to
provision
permissive
making
the new
action
a clear contrast with
of
and
legislation.
provision
avoiding
and the 1952
conflict between that
*9
reports
if the
could be so
expressly so declared. Even
unless
invoked,
question
appli-
they
discuss the
of retroactive
do not
application
anything showing that
an
or contain
cation
Report
Preliminary
submitted on March
intended.
was
problem
two
(at p.
that the
of sex crimes has
8,1950,
9)
states
community
protection of
the con-
major
the
the
aspects,
offender.
treatment of the individual
trol, correction, or
as
offender” was described
Although the term “sex
p. 30),
“past”
(Prelim. Rep.,
this was done
meaning
offender
offend-
an offender from the “future sex
to differentiate such
probably
a sex
person
a
who
will commit
er,”
described
pp. 32-33), and
the desir-
(Prelim.
indicate
Rep.,
crime
report
submitted
measures. The
ability of
retroactive
legislation
August
after
effective date
person
of a
page 42 that “a
convicted
sex offense
stated at
Sys-
employed in the
not continue to be
Public School
should
employ-
seen, words such as “retain
As we have
tem.”
and the same is true of
retroactivity,
do not indicate
ment”
comparable
report,
“continue to be em-
words
subsequent
making
this statement
ployed.” Moreover,
legislation
consid-
the subcommittee was
the enactment
rather,
question
retroactivity,
but
as shown
not the
ering,
question
by
report,
whether
next sentence in the
one
employee
“to terminate from
should be allowed
employment at another
to then obtain
school district
’ ’
school.
by
that retroactive
urged
defendants
It
is also
legislation
us is essential for the
before
application
policy
This was
adequate protection of school children.
When the statutes
Legislature to consider.
matter for the
already provisions
there were
enacted
question were
excluding from the
operative, for
existence,
are still
system persons dangerous to children
reason
any dangerous
provisions
these
Under
sexual misconduct.
teaching
grounds
such as
person can be excluded
13209), and,
Code,
(e.g.,
unfitness”
Ed.
“evident
§§
them to consider a
appropriate under
course, it would be
of when it occurred.
regardless
a sex offense
conviction
sweeping than
legislation is more
true that
It is
duty
mandatory
to take
imposes a
that it
provisions in
these
coming
against
person
hearing,
notice
action, without
may
that he
though
have evidence
he
terms even
within its
to be a teacher.
presently fit
and is
rehabilitated
has been
unless the 1952
suggest that,
it is fallacious
However,
legislation
operate retroactively,
is held to
school children will
protection.
be left
protection
without
by
view
provisions
afforded
Legislature
the other
may
have
application
concluded that retroactive
legislation
the 1952
irrespective
undesirable because would
automatically,
showing
what
present
could made of rehabilitation and
fit-
ness,
destroying
result in
the means of livelihood of
having
consequence
no
of this
warning
until after their con-
viction.
Whether
was influenced
these
others,
considerations or
the fact remains that it
no
used
language expressing
retroactively.
an
apply
intent to make the
*10
question
The
the
legislation
whether
1952
was retroactive
squarely presented
was
in Fountain v. State Board
Educa
of
tion, supra,
Cal.App.2d 463,
157
which held that it
not
does
apply
persons
of
sex offenses before its effective
date.
that
The decision
the teacher was entitled to reinstate
solely
respect
ment
the
with
rested
on
determination
to retro-
only
question
activity,
other
since the
involved
the case was
against
unanimously
petition
resolved
him. We
denied a
for
hearing
Although
that case.
court’s denial
hearing
regarded
approval
expressing
a
is not
as
the
propositions
opinion
set forth in an
of the
of law
District
Appeal
having
Court of
as
the
authoritative
as
or
same
effect
(Western Lithograph
an
earlier
this court
v.
decision
Co.
Equalization,
156,
State
731,
11
167-168
Cal.2d
P.2d
[78
Bohn, 164
; Bohn
Cal.
117 A.L.R.
v.
537-538
532,
838]
Davis,
346,
718]),
; People v.
147 Cal.
350
P.
P.
[129
[81
981]
significance
a
without
as
does not follow that such denial is
(see
Rush,
345, 351,
to our
45
fn. 3
views
v.
Cal.2d
Cole
[289
Eisenberg
Superior Court,
;
P.2d
v.
There is the contention that the decision
179 appeal (DiGenova v. State Board upon prior of this court 862]) constitutes 255 P.2d Education, 45 Cal.2d [288 plaintiff holding as to preclude so as to us law of the case The doctrine legislation is not retroactive. 1952 points of law which not case does extend the law of the presented not and determined might but been were have Henger-Seltzer Co., 26 (Steelduct prior appeal. v.Co. 273 Trott, 162 Cal. ; Moore v. 634, 644 P.2d 804] [160 City County Francisco, & San ; P. Trower v. [122 462] City Angeles, 138 Skaggs Los 617] ; 762, 765 P. Cal. [109 ; Webbv. P.2d Cal.App.2d 269, P.2d 572] [291 816].) Saunders, Cal.App.2d [201 question was limited to opinion court in 45 Cal.2d of this notice properly without plaintiff be dismissed whether could upon question of retro nothing hearing. It contained that “on contrary, stated but, to the active construction their boards exceeded plaintiff may retrial show contemplated not authority were those the convictions person he or that section 12756 [now § 13207] permit enough to clearly broad language is This convicted.” here, question presented upon retrial, of the consideration, would be plaintiff was convicted offense of which because the only by” legislation if the among contemplated “those retrospective. as is construed Moreover, case, the doctrine of the law of the merely procedure rule of not go power does recognized court, being has been harsh, and it will *11 application to not be adhered where its will in unjust result an (Vangel Vangel, 804, v. 45 decision. Cal.2d 809-810 P.2d [291 England Hospital 25, ; 55 A.L.R.2d v. Good Samari 1385] tan, ; 14 795-796 791, Binga Cal.2d P.2d see v. Gore [97 813] 118, 17].) man, England 122-123 P.2d In Cal.2d the [124 unjust apply case this court held that would be to the plaintiff a against (relating liability doctrine where the law to hospitals) “unsatisfactory had been in of charitable its state prior appeals ment” at the time several but was clarified, recovery, in permit day to another case on so as filed the same England case court the was decided. The declared that to newly adopted apply plaintiff to refuse the rule the would far form above substance” result “exalt would (14 unjust pp. at 795-796.) “most decision.” Cal.2d Englandl exception made the case has also been applied controlling rules cases where the of law have been intervening a decision between altered or clarified the first appellate (Subse of the courts.
and second determinations quent Injuries Fund Industrial Com., v. Acc. 53 Cal.2d 193] ; Bingaman, 394-395 P.2d see v. Gore [348 ; 122-123 P.2d Standard Oil Co. v. 56 Cal. Johnson, [124 17] App.2d 910].) 411, 416 P.2d The decision in Fountain v. [132 supra, Cal.App.2d Education, was State prior appeal between the and the second trial made present case, and, above, board, acting as noted the state on Fountain, credentials to several the basis restored legislation. as a result of the 1952 It who had lost them application doctrine in a obvious that here would result injustice. manifest at trial the
The local asserts that the second board denying juris its motion to dismiss for lack of court erred requires 583 of the Code Procedure diction. Section Civil brought years to trial within three after case must be appeal trial is filed the remittitur issued court, requirement position of the local board is by plaintiff proceedings instituted within not met because the comply provisions three-year period did not with the five-day Procedure for a of the Code Civil section 594 .”7However, of fact answer of trial on an “issue notice prior that the occurred of 1952, admitted conviction defendants retroactivity presented only question the issue of necessary were to establish factual determinations of law. No five-day reinstatement, and notice re plaintiff’s right to correctly inapplicable.8 The trial court thus quirement was situ board’s motion dismiss. A different the local denied by plaintiff’s request damages, which for presented ation was Although city was entitled to questions of fact. involved plain issue, trial of this five-day insofar as concerns notice upon trial for decision court tiff submitted the case announcing not then reinstatement, that he was issue of sole damages, judgment does proof of and the prepared to offer part: provides “1. of Civil Procedure the Code 7Section 594 of may bring party municipal superior an issue either courts courts and party, and, hearing, unless of the adverse may the absence to trial or to a case, direct, proceed court, good cause, his otherwise judgment, action, verdict, or as the or a take a dismissal of may require; provided, and ease however, tried is an issue if the issue to be proof fact, court the satisfaction must first be made to days party trial.” has had notice of such the adverse five only may, course, law are “trial” where issues of 8There be a 305] ; Carney Simmonds, (Cf. P.2d v. 49 Cal.2d [315 determined. 621] ; City O’Day Court, Superior 18 Cal.2d 544-545 [116 Superior Court, 968].) Pasadena v. 212 Cal. 313-314 P. [298 *12 damages. argues Plaintiff, not award who that the try damages, ease should be remanded order to the issue of position point appealed. is in no to not raise since he has judgment The is affirmed. J., Peters, J., Dooling, J., and con- White, J.,
Traynor, curred. study SCHAUER, detailed of the J., Dissenting. After am in pertinent in this case I accord with
record and the law opinion scholarly forthright and authored the District tempore Coakley, con Appeal pro Court of Justice by Presiding Bray 1961), (Cal.App., curred Justice explanatory Cal.Rptr. adopt it as 620, and reference affirming why join my the reasons judgment I cannot associates superior of the court.
Although Coakley’s fully adequate opinion is Justice impelling reached, it, course, conclusions was written my importance opinion before the In view of the associates. ruling California, of their to the school children of Legislature parents of children, those great body the members abiding and to the of law dedicated teachers who appears crimes, proper it have not been convicted sex emphasis aspects add to those those facts and law my convincingly position view refute the majority. emphasize majority minority
At I outset justices principles all alike are in as to law relevant accord dispute to this that there is no as to the basic facts. ease and disagreement principles of The between us is as to which law given controlling effect. Fur- the circumstances should be way goes) change thermore, (whichever will decision only significance contrasting real lies in its rule of law. Its immediately concerned; groups on the two effects necessarily group adverse to a decision favorable one the other. majority subject legislation hold that the intended only prospective application to a to have application existing group. not immediate to an group,
future relatively protects ruling small This group employes who on the date of effective subject already act had been convicted of one or more designated By holding the school crimes therein. (and the teachers who have not suffered con- children be so *13 victions) are As this court said in victs. The Legislature, follow from retention in 862], grave Education (1955) language as to continued require used its earlier it will school immediate removal of such 45 Cal.2d whatever appear, Legislature opinion (DiGenova found such hazards to hazards, “implies that the of sex-crime con- [2] if any, [288 persons. v. State may [teaching] credential should be delay revoked without the which would be incident hearing” to a in order that such persons be promptly “should removed from the classroom and contact with plaintiff students.” here, advice Attorney General, was so removed. I would sustain the removal. I subject As read the Education Code sections and their legislative history impressed I am with the conclusion that Legislature had well in mind the relative values of re- trospective (i.e., immediate) prospective applications and statutes—and the like relative eliminating values of forthwith from positions school teachers’ all convicted sex crim- opposed making inals as operative only the statute as against might those who in the be convicted of future
sex crimes. latter This alternative seems to me pathetically to be locking reminiscent of the barn door after the ; horse is stolen the first conviction for which a second offender could be legislation removed under this majority as the it construe against could well be for an offense one of the children. resolving the ultimate necessarily issue I think we must impliedly consider at least following and ques- answer the Legislature designate tions: Did the as of the date of its persons (convicted action a class criminals) ineligible positions to hold teachers’ prescribe procedure and a for their immediate merely prospectively removal? Or provide did it for a upon future class who conviction would then become ineligible? For example, did the find that a day teacher convicted one the effective date of before the 1952 enticing enactments an [chaste) “unmarried female age eighteen . . years, . under the into house ill-fame, purpose . . . for prostitution” hazard to subject school children properly and therefore not person forthwith removal but that a convicted of the same (violation Code, 266) day offense of Pen. one later was § subject hazard and to such removal? For whose benefit was legislation unquali- and intended: The school children fiedly? subject maintaining Or school children first to group the schools that of teachers who been had Against dangers sex crimes? what is the in- protect Only against tended to a prospective children: danger prospective may teachers who one one, future present against become convicted sex criminals? Or, well, existing danger past from all who in the had been discovered and employed convicted and who were then schools? By obviously implied majority answers of the
foregoing questions appears to me that their allocation of sharply relative values Legislature differs from that manifested developed and which is also expressed Coakley’s opinion my Justice own views. *14 by The writ of mandate the issued court below directs the teaching State Board of Education to reinstate the credentials plaintiff DiGenova, and orders the Education of City County the and of San Francisco to reinstate him to his position as public teacher in the schools. His credentials had been and discharged revoked he had been when it was dis- covered from court records that his certification and before employment he had twice been convicted of sex crimes. The issue as indicated the questions, above stated is whether the Education Code of California as in 1952, amended re- gardless type teaching the previously issued, certificates requires forthwith revocation of credentials and dismissal from employment, of currently employed teachers who had been sex crimes before the date of enactment pertinent of the code sections as well as those thereafter so presented convicted. Both for the reasons Coakley Justice and for those hereinafter I am stated convinced the trial ordering court in erred defendants to reinstate plaintiff, and judgment that the should be reversed. recognized majority As in opinion this case has hereto- fore been (DiGenova before us. v. State Board Education (1955), supra, 45 [1-6].) 257-260 Because, how- importance showing ever, Legis- intention of the enacting subject legislation lature in a further factual appropriate. appears statement is As from opinion our appeal the first DiGenova, receiving before teaching his cre- dentials, had been convicted in municipal court of Los Angeles, “vagrancy once of lewd” and once of a violation of section 41.10 of city (see ordinance 77000 of fn. p. 258, case, supra) first DiGenova for an offensetermed convictions, copies
“consorting." These as shown certified are to defendants’ return of the court records which attached factual basis for and which constitute sole defendants’ (December respectively, 28) in actions, occurred, and (May 15). conviction, 20 months after the About second he his first to teach and became a teacher received credentials January public system. In Francisco San system. July permanent In acquired he following tenure against children an ex-
a series sex crimes and probable proclivities study of sex possible tended Legis- schools, in the employes public crime as offenders “relating lature several Education Code added sections respect employment convicted of sex offenses System. (Stats. in the ..." Ex. Public School 1st Sess. in the 25, p. 389.) sections, The added construed ch. enactment, of their to and do circumstances were intended mandatory purging provide for a and immediate of convicted public employment The char- sex criminals schools. penal. Rather, it not remedial acter of such is existing danger recognizes an procedural; source provides remedy. schools April Board of Di- 1953 the Education renewed State period expiring 1956. credentials, Genova’s Shortly November local
after this last mentioned renewal state and facts of boards discovered the record DiGenova’s hearing without notice or the San crime convictions and him dismissed the state board revoked Francisco board following not now his month. DiGenova does credentials here- deny—rather, convictions, he asserts—the fact of his suggest He that he disclosed inafter related. does had application, or that either board his *15 prior criminal record to the latest renewal of, aware his man- papers. In he this his official December 1953 instituted judgment procured a his favor proceeding, and damus lawfully deprived of his ground that not on the he could position hear- charges, his “without notice or credentials and ing.’’1 remanded, This court with the statement reversed may plaintiff that the exceeded that “on retrial show boards authority in not those con- their that the convictions were plaintiff's hearing in on counsel 1At court occasion the the trial that only question the that revocation stated “that plaintiff’s the involved was San his the the state board and dismissal credentials (Di hearing.’’ charges, were notice or Francisco board had without 258.) (1955), supra, Board 4.5 Genova v. State Education now statute, pertinent templated by section [the person the was not or that he numbered 13207] § argues those relief. Plaintiff appropriate obtain and thus solely he relied trial court but in the questions here that court’s basis of hearing which was notice and lack of (1955), Education (DiGenova Board v. State decision.” 255, 263.) supra, 45 Cal.2d superior court clerk of with the was filed Remittitur set the steps to took no 15, 1955. DiGenova on November filed when he September 26, until ease for retrial that unless ground date, on the retrial to advance motion brought (within three 15, 1958 prior to November to trial of the Code filed), section years date remittitur time he At the case. required dismissal Procedure Civil upon rely wished that he to the court further declared Cal.App.2d (1958) 157 Education Fountain v. State February The court 1958. 899], decided 463 [320 express and, in requested as trial date below advanced appellants case, ordered Fountain upon the sole reliance him as reinstate and to credentials to restore DiGenova’s appeal This followed. teacher. majority (1) enforcement position is the It against as thereto- to the Education Code additions teachers, of their likewise theretofore
fore accredited because crimes, would persons convicted of sex accredited status as no law; (2) retrospective application constitute Leg- given retrospective effect unless the legislation should be end; clearly expressed an intention to islature has of the sub- (3) language in the circumstances that the used purpose. ject legislation not manifest such does statute application of the remedial that the I do concede a true retro- of this case is in the circumstances to DiGenova I assuming that it would be2 spective application but even in the cir- Legislature, language used think that the an inten- found, clearly establishes of the facts it cumstances immediately to the end remedy available to make the tion existing hazards to children. possible removing far as as power of the that it was not within is made No contention or that application, provide retrospective unconstitutional. application would be majority upon which rule, general and established application retrospective forward is carried assumption 2This follows, except indicated. where otherwise in the discussion *16 186
rely and to which I subscribe, is not an absolute rule and
preclude—indeed
specifically
its
does
stated limitation
supports—the
that I take. It
view
is that
are not
“statutes
to
given
retrospective operation
clearly
be
unless it is
made
legislative
appear
(Aetna
that such was the
intent.”
Cas.
Surety
(1947)
&
Co.
Industrial Acc.
v.
Com.
30 Cal.2d
159] ;
393
P.2d
Industrial
(1957)
State
Acc. Com.
[5] [182
48
361
1].)
P.2d
Another statement
[2] [310
Rarity (1930)
rule is found Krause v.
210 Cal.
court,
655
P.
77 A.L.R.
where the
con
[11] [293
1327]
"
’’
sidering
recently
guest law,
then
enacted motor vehicle
“although
legislature
power
stated that
give
has the
retrospective
operation,
impair
statute
if it does not
obligation
rights, yet
of contracts or disturb vested
it is to be
presumed
no
effect,
that
statute is intended to have that
and
given
effect,
will not be
clearly
unless such intention
appear
language
from the
of the statute.
[Citation.]”
Bay Municipal
(1923)
East
U.
Dist. v. Garrison
191 Cal.
43],
“Municipal
Utility
P.
which dealt with a
Dis
[218
Act,” it
principle
trict
is observed
“it
is a well-settled
statutory
construction that an act will not be construed
express
to be retroaeive in
absence
either an
declaration
very
implication
to that effect or
clear
that such was the
(Italics
legislature.”
added.)
intent
A narrower and more limited statement of the rule is
Code,
Procedure,
found
the Civil
the Code of Civil
respect
provisions
Code,
the Penal
with
of such codes.
provides
part
3 of each
those codes
Section
“No
of it
respective
expressly
retroactive,
unless
so de-
code]
[the
(See People
(1960)
clared.”
v. Harmon
54 Cal.2d
329].)
specification
no
[20,
appears
But
similar
21] [351
provisions
Code,
the Education
wherein are the
now before
contrary,
us. On the
section
of that code declares that
provisions
requires
or the context otherwise
“Unless
these
through
general provisions,
construction,
rules
10]
[§§
govern the
definitions shall
construction
this code.”
(Italics
general
added.) The
rule of
re-
construction thus
Code,
to is
2 of
Education
ferred
found
section
‘‘
respecting
follows:
code establishes
law of
state
subjects
provisions
relates,
to which it
and all
and its
liberally
proceedings
construed,
it are to
a view
under
objects
justice.” (Italics
promote
added.)
its
effect
plain
general
appears
thus
It
that the
rule
clear intent
(with
objects),
liberal
rather than
construction to effect its
respect to
declaration, governs with
“express”
narrower
*17
given retro
are to be
involved
here
the statutes
whether
spective application.
intended the
Legislature had
If the
considering
provisions
apply
when
rule
narrower
it would have
to believe
Code, it is reasonable
Education
the other
respect
with
declared, was done
expressly
so
statutory
rule of
fundamental
mentioned. “The
three codes
the intent of
ascertain
the court should
is that
construction
purpose of the law.
Legislature
as to effectuate
so
' every
be construed
Moreover,
statute should
[Citations.]
it is a
system of law of which
to the whole
with reference
’
have effect.
. . .
may
harmonized and
all
part so that
Legislature used
presumed that the
It is not to be
[P. 647.]
important
nugatory
render
language in a sense which would
Materials, Inc. v.
(Select Base
provisions of the statute.”
[1,
(1959)
640, 645
Equalization
51 Cal.2d
2]
Board of
(1961)
Augustus
56 Cal.
672]) ;
v. Bean
also
P.2d
[11] [335
873].)
Cal.Rptr. 641, 363 P.2d
270,
2d
272-273 [4] [14
“
must be
words
t is a cardinal rule
construction
[I]
defeat
promote rather than
given
interpretation as will
if
and that
policy of the law ...”
general purpose and
ap
as to avoid absurd
possible
be so construed
statutes will
(Department Motor Vehicles
plications
consequences.
(1939)
Industrial
v.
Acc. Com.
14 Cal.2d
[4] [93
308, 312
Cregler (1961) 56
;
also In
Cal.2d
P.2d
see
re
131]
Kenny
;
Cal.Rptr.
Warner
289,
For of reference to the former it is noted that 1959 the decisions, and to cited earlier (Stats. Education Code sections were renumbered. 2.) exception 12912, there However, ch. with the of section any change respect has been no substance with code in 1952 involved in this ease. sections added which are
Therefore, convenience the current (1959) section num- although bers will be used herein such sections when added in 1952 were numbered numbering system. under the 1943 (For (1943) identification of the former Education Code pp. numbers Tables, seq., Deering’s see cxciii et Code, 1960.) Unless stated, opinion otherwise all section numbers in this refer to pertinent (with the Education Code. The sections added) italics are: Section any 13207: “Whenever credential, holder diploma, life or document issued the State Board of Educa- tion has been convicted of offense as defined Section suspend . State Board . . shall forthwith the cre- dential, diploma, life or document. . . . When the conviction final imposition becomes or when suspended of sentence is credential, board shall forthwith revoke the diploma, life or document.” imposed duty upon county Section 13218 the same boards respect
of education, to holders of certificates issued *18 such boards. “Governing Section 13255: of boards school districts shall employ or retain in persons public in school service who any have been of convicted offense as defined sex
in Section 12912....” person employed 13586: “No Section shall be or retained employment by in a school district who has been any sex offense as in defined 12912. Section ...” (as 1955; Section 12912 in 874, amended 1955, Stats. ch. “ p.1, 1489, 12011.7),: at that time numbered § ‘Sex offense’ in 13130, 13207, 13218, as used 13255, Sections and 13586 any this 267, code offense in 266, 285, means defined Sections 286, 288a, 647a, 288, 261, subdivision 3 or 4 of Section sub- division 5 of or 2 of Section subdivision 311 of Section any Code; the Penal subdivision offense defined Section 311 of the Penal Code committed on or after effec- tive date the amendment this section at the 1955 made Regular Legislature. Session ...” originally Section 13130 as it read when enacted in 1952 (and 12107) provided then numbered that the “State § deny any application of Education shall for the issuance of diploma credential or a life or for the of a renewal credential by any applicant made who has been convicted of By offense as defined in” section 12912. the 1955 amendment year section 13130 and addition in the same of sections (Stats. 13208, 13219, 13256, and 13587 874), ch. proscriptions psychopaths the Legislature extended to sexual against in 1952 those convicted of sex offenses as set enacted above-quoted more forth in the various sections. Of this will be said hereinafter. involved, all here subdivision 5 of section At times Every provided that,
of the Penal person by imprisonment. “5. lewd or dissolute Code punishable by vagrant, ... is a fine ... or Is and In the court below (at ...” second seeking trial) declared his client was counsel DiGenova retry question retroactivity “to the . . . case on the of the primarily “I statute”; want to establish that he person was the and the statutes under which he [convicted] applied retroactively”; was were the “one dismissed legal issue which remains to be resolved” is that of retro- spective application statute; and that in 1945 DiGenova guilty “Vagrancy, lewd,” found 1947 was he guilty jail again “found and sentenced to for a sex offense.” (Italics added.) Thus DiGenova cannot now be heard assert that he was not convicted of a sex offense within the provisions applicable sections of the Education Code. quoted All of the Education Code sections hereinabove part are found division 10 of 2 of that code. That division simply “Employees.” is entitled Section which de- offense,” fines “sex chapter found 1 of division chapter Applying which ployees.” is entitled “Provisions All Em- 13207, 13218 and Sections 13255 are found chapter chapter 2 of division which deals with “Certified Employees,” teaching personnel. i.e., Section 13586 is found chapter chapter 3 of division deals with “Classi- Employees,” i.e., nonteaching personnel. fied my necessary It is view that implication the clear and particularized specifications the Legislature 1952 statute is that the thereby intended system to rid the of all regardless convicted of sex offenses whether the conviction was before legis- or after enactment of the new *19 lation.
In the place, first the 1952 act directed state school boards (§ 13207) to revoke (§ 13218) the credential and local boards to teaching revoke the certificate personnel “Whenever the holder .. . [finally] any has been convicted of sex offense. ...” The language (italics added) “Whenever . . has . been” as used my sections 13207 and 13218 in view shows context plain a apply intent that past the sections to convictions. If easily, had otherwise, could intended language should,
to be consistent have used indicating, so appears example, provides as in section which charged the holder “Whenever ... is with immoral or un professional per conduct or evident unfitness for service or may require sistent defiance . . . the State Board . . . a ... hearing. (Italics added.) Moreover, ...” sections 13255 and speak in positive declaring clear and terms “employ not (§ 13255) local boards shall or retain” teachers personnel nonteaching (§ 13586) or “who been have [the majority read this as to “who shall hereafter convicted be”] (Italics sex offense as defined Section 12912.” added.) appear by Thus sections and 13586 clear language employment the retention persons, forbid nonteaehing whether or personnel, teachers who have been together convicted of sex offenses. thus When read the vari legislative pur ous sections of the 1952 act a show manifest pose offenders, to rid the schools of all convicted sex regardless (Cf. Augustus date conviction. Bean (1961), supra, pp. 270, [4].) 56 Cal.2d apply
To that the act does hold to convictions suffered produces patently before its enactment absurd and mischievous employe It that a results. means of a rela tively minor sex offense after 1952 must forthwith lose his position upon discovery credential and of the record of con viction, procurer, rapist, deviate, while a sodomist teaching credential, awith whose conviction occurred even day one before the 1952 act became effective cannot be re any provision give only Further, moved under of that act. prospective application to the 1952 amendments makes it necessary appear prospective application given that similar be the 1955 of section amendment 13130 and the addition of (Stats. 13208, 13219, 13256, 874), sections and 13587 eh. " provide that Whenever the holder . . . has been deter psychopath (§§ 13208, 13219) . mined to be sexual . .” state and local boards shall revoke credential and his cer (§§ 13256, 13587) person tificate, and “No shall be em ployed or retained . . . who has been deter psychopath. (Italics a sexual added.) mined ...” necessarily majority meaning latter section read “who shall after the effective date of this section have been determined,” apply etc. To so the 1952 the 1955 enact position by result in the loss of credential ments will adjudged sexual offender convicted after 1952 or one psychopath sexual after but not an offender who
191 by securing a sexual escaped between 1952 and 1955 conviction Code, (See & 5500 psychopath Welf. Inst. determination. §§ absurd intent should be seq.) et No unreasonable and such Legislature. attributed to the Legislature have declared that And that the would operate prospectively only, intended, ap act if it should had so pears language to 1955 it section from the which added 12011.7) then (as 12912 when numbered that section was § immediately following provide, “Penal amended to the words any of Code”: “or offense defined subdivision 1 Section exposure] 311 of the Code committed on or Penal [indecent date made the amendment this section after of effective Legislature. (Stats. Regular at the 1955 Session ...” added.) language fact that 874; ch. italics this 1955 (of directing application 874) prospective eh. was limited only designated to exposure, the one offense indecent as well (directing language as that no prospective application) (also in the 1955 874) included sections found in ch. psychopaths to sexual program extend to eliminate provides sexual schools, offenders a further affirma victed) the date of immaterial. sex California 213-214 County tive indication of offenses 635].) [1] Emp. Los (See (including [187 Angeles Stab. Com. v. Bellman v. legislative P.2d 702] ; Board [1] [5 commission that of which (1945) intent Cal.Rptr. County Payne 27 Cal.2d conviction was and is (1947) as to Contra DiGenova Social 353 P.2d 31 Cal.2d Costa 97 [3] [162 other Welfare was con (1960) 300] listed ; may this connection Legis- be further noted that the difficulty lature expressing found no specific its intention language in section Code, the Penal which since 1947 required has registration “who, offender since day July, first has or is been hereafter (Italics State California of the offense of . .”. added.) pointed And defendants, out it will be an absurdity added that one convicted between 1944 and 1952 required register as a sex offender under that section (Pen. 290) Code, may nevertheless § continue to teach in the public schools, as will occur from apply refusal retro- spectively (i.e., conditions which the found currently existing constitute an danger) the Educational provisions Code now before us.
Further, the rule is that if courts are doubtful as to the meaning they adopt of a statute interpretation should legislative which is accord with the reports committee deal " ' ing legislation. reports with the Committee explanatory in charge, presenting statements members made a bill *21 passage, legitimate for pretation have been held to be a aid to the inter a language statute where its is doubtful or ” (Southern obscure.’ Pac. Industrial (1942) Co. v. Acc. Com. [1a], 880].) 19 Cal.2d 278-279 P.2d “In the [2] [120 compelling language absence of contrary, in the statute to the Legislature adopted proposed it will be assumed that the meaning expressed by with the intent and (Hohreiter report.” in its v. Garrison [Judicial] [C]ouneil (1947) Cal.App.2d 323].) 397 [5] [184 in Defendants their brief have referred title and date comprehensive Reports to “five Assembly of the Subcommittee Preliminary Sex Report Crimes.” The of this subcommit- tee, issued in 1950, relates its foreword that “Two small children were murdered sex fiends in Southern and Central California the fall of publicity 1949. of these murders public upon focused the attention of the sex crimes and sex public opinion offenders. There was much that the size of the problem sex crime existing legislation was such that and tech- niques of control inadequate,” were and that the subcommit- appointed tee November, was 1949. “It has been demon- to problem strated the subcommittee that the of sex crimes has major aspects. two protection The first and foremost is the community the port Preliminary from the sex offender.” The Re- relates, among (the then things, through- other italics following quotation out the being Legislative those “ Subcommittee) past-tense : word; ‘Sex Offender’ is a really past means sex The sex offender is someone offenders. past indulged who has in sexual conduct for which he subject potential prosecution. “Only portion a past sex reported offenders are sex offenders____ " Only portion a reported of the sex offenders are arrested . . . offenders. “A portion still smaller past group sex offender is up made of convicted sex offenders. ...” Appended Preliminary to the 1950 Report a statement of Stoddard, Superintendent Dr. Alexander J. Angeles of Los City Angeles City Schools, Los of Education, following (italics includes the quotation in added): are provide clean, "The should a schools wholesome environment growing boys girls. . for . . screening be most employees, "There should careful of all applicants in-service, rigid both any elimination of history who manifest or have of aberrant sexual behavior. try effectively precautions "We to do this further but are being taken to discover such histories. .. . possible "Every precaution provide should be taken to early program recognition personnel signs Adequate provision deviant of... sexual behavior. should prevention repetition be made for such ab- normalities. . . . "Every precaution safeguard should taken to be children potential from or actual sex criminals. ...” August 1952, Assembly Subcommittee on Sex Crimes reported among things other that "A review the Education relating person Code respect convicted of sex offenses [s] System their in the Public School and to certifi- cation documents connection therewith reflects that sufficiently laws are not person clear assure that such a prohibited continuing employed could to be *22 System Public School of of the State California. Your com- unanimously agreed mittee person that a a convicted of sex offense employed should continue to be the Public System. School problem The over-all solution to this should severely handicapped employee if a convicted of the School System merely is allowed to terminate one school dis- trict to then employment and obtain at another school. Assembly passed by Bill No. 31 was the "Accordingly, Legislature Extraordinary Session, at the First California 1952, July 2, and became 1952. The text of this effective (Italics law is as added.) follows: ...” The text of the act (eh. 25) which we are here is set out in concerned then full, including, course, of which sections 13255 and 13586 provide persons speci- that who "have been convicted” of the "employed fied sex offenses shall not be or retained” the public system. report Assembly This 1952 Subcommittee, concurred unanimously two-year study its of members, followed a problem carefully empha- the of sex Yet studied offenses. the " of sis unanimous that the committee ‘Sex offender’ is past-tense really past offenders,” word; etc., sex is means coolly majority. my report, brushed aside the view the together language with the of the additions Education
194 adopting chapter Legis- the Code, no that in 25 leaves doubt public of all sex lature intended to rid schools convicted regardless of whether their occurred be- offenders conviction or after the date of the act. fore effective legal mentioned, has sense As been hereinabove strict application of not a true retro- the 1952 act to DiGenova is spective any application, and is not unlawful. event protecting subject is to end of the children act remedial public alone—it schools. To that end—and to end speci- simply designates persons (those a class convicted prohibited from crimes) all whom are fied in of the class is schools. The common denominator Each sex crime. been convicted a defined each member has hold ineligible to made is as a matter law ain positions) position (or certain other teacher to applies alike reasonable. It This classification is school. previously, subsequently, those those and teaching in a specified The mere tenure crime. fact position application held not make is does statute unlaw- nothing Constitution, ful. There the statutes or deci- precludes enforcement of the sional law In classification. it is noted that at all this connection material times Educa- (or predecessor §13007), section 13269 its has Code, tion provided employments provisions that “All under the of Sec- 1001, 13116, inclusive, 1000 Sections 13113 to tions 13312, inclusive, 13318, to to 13314 Sections 13252 Sections inclusive, 13326, 13320 to and Sections inclusive, Sections right shall be 13337, inclusive, to subordinate to 13328 repeal or 1000 and to amend Sections to 13116, inclusive, 13252 13113 to Sections Sections inclusive, to Sections 13320 13314 inclusive, Sections inclusive, to inclusive, to and Sections nothing provisions at any provision or thereof time, upon any person to confer contained shall be construed herein provisions hereof contract which employed pursuant repeal of impaired by amendment or Sections will be 13116, inclusive, Sections 1001, Sections inclusive, Sections 13312,inclusive, Sections P.2d to be clusive, 13320 (Hall 574].) plenary, subject v. to Legislature over of or City any provision or of Taft inclusive, (1956), only and public 47 Cal.2d provisions thereof.” Sections 13328 constitutional schools 180-181 177, is, of to course, restrictions. 13337, [1] power held [302 *23 in- 195 necessarily recognized that, It must sug as hereinabove gested, the statute with which dealing, designed we are is which public sex eliminate offenders from the system, was punitive nor is it to not intended be considered as exacting penalties past directed at further offenders. penal any respect. is Rather, It not above its mentioned, protection aim the of is the school children from those con of, psychopaths disposed victed toward, or the ease of sexual offenses, rape, sodomy of of whether the nature or perhaps per or of the vagrancy incest less se of serious lewd As declared in DiGenova convicted. Bates v. Board (1903) 907], quoted Education 139 Cal. 148 P. [72 of approval (1911) with in Stuart v. Board Education 161 of 712], Cal. 213 P. “The schools not were cre [118 they ated, nor are of the benefit the teachers supported, . . for the pupils resulting therein . but benefit of the and the parents community large.” benefit their Further, and the at of course, system legislation regulating “The whole of machinery upon educational is consideration of based proper regula welfare and best interests the children. The rights tion of tenure office other teachers were also properly regulated, pur considered but the fundamental pose primary object legislature was the considera tion of the purpose welfare the children. This fundamental sight must not legislation dealing be lost courts in the construction system.” (Knicker with our educational High bocker v. Redlands (1942) Cal.App.2d Dist. 49 School unless it its enforcement and trative construction of the enactment and courts trolling, as where App. 157, 864] ; 918, 921 Coca Cola It Burkhard 727 may see also provisions [4] [1] [156 Co. v. State Board also be mentioned that, generally [122 (1955) clearly Goldsmith v. Board [5] P.2d made without the [225 P.2d 1], interpretation unauthorized.” erroneous or See also will 289], quoted statute, P. Cal.App.2d 367, 783].) “Although depart Equalization is entitled to contemporaneous with authority as said Education from such construction approval not those (1945) 25 Cal.2d necessarily [4b] (1924) this court in charged great weight, repugnant [280 McGrath adminis- P.2d con- Cal. Mudd v. interpreting equivocally 10]. chapter On McColgan (1947) July 1, 1952, attorney general one the 1952 act as day prior 30 rendered the effective operating retrospec- his [4] opinion [183 date un- *24 lively requiring the revocation the of a and credentials regardless of offender the date conviction and convicted sex (20 including specifically prior July 2, convictions 1952. 10.) in Ops. Atty. Defendants have stated both their Gen. argument July in this court that since and oral before briefs continuously Attorney followed 2, the state board the already I opinion which, herein, indicated believe as General’s correctly interprets question. the in duty recognized in generally As to court con the this struing legislation—and it cannot be that remedial doubted are 1952 amendments to the Education Code remedial— the (1956) Phoenix said in Continental Co. v. Constr. Co. we Cas. 914], 57 A.L.R.2d “Such 46 Cal.2d [9] [296 general responsibility automobile financial is a law law] [the public liberally in and in the interest is nature remedial (See fostering objectives. its Wheeler to the end of construed 544, 111 (1937) 297 549 N.E.2d A.L.R. O’Connell Mass. v. [9 Heydenfeldt for this 1038, 1041].) As said Mr. Justice rule of law in the long ago, law, the ‘The and still court great requires and statutes liberality, construction of remedial construed as meaning doubtful, it must be so is (White wherever ’ Mary (1856) Steam-tug Ann remedy. v. to extend also Mead 523] ; see Cullerton v. Am.Dec. 6 Cal. 470 [65 (1863) 22 Cal. 96, 98 ; v. Genella 22 Cal. Cormerais (1863) (1911) 143, 188 P. 160 Cal. Davis Hearst 125 ; [116 construing principles in automo respect 530].)” If these we our responsibility it would seem that school laws bile financial equal consideration. to at least be entitled children should (1909) (See Cal. [102 Estate Patterson also 625, 26 L.R.A. N.S. Ann.Cas. Am.St.Rep. 116, 18 941, 132 P. principle case at bench applicability of this 654].) The specifically Code fact that the Education emphasized is proceedings under all provisions and (§2) that “its directs its to effect liberally construed, view are to be objects. ...” my of what has been related there no doubt
In view
Legislature found that
the continuance
em-
mind
as
ployment
prospectively,
as well
convicted sex
theretofore,
public
designated capaci-
schools
criminals
imposed grave danger
unnecessarily
to school children.
ties
Legislature
no doubt either
had
There can be
(immediately
classify
persons
ineligible
power such
system.
employment continuingly)
present danger
employing
Legislature found
Since
power
had
direct
their forthwith
removal, it
the majority
seems that
court,
clear
implication
opinion,
of their
Leg-
convict the
members
responsibility.
of a
islature
serious breach
speak
I
defense
all the members of the
who
study
participated in the
preceded,
enacting, the
subject
say
Education Code sections when I
that to me it is
*25
perfectly
language they
(and
clear from the
in
used
the cir-
by
cumstances of its use as made
the
manifest
committee re-
port)
they
that
did not intend that the schools should retain
in
persons
previously
who had
suffered sex crime
types
convictions
enumerated;
of the
rather it was their inten-
tion that the
employing
imminent
hazard
children of
convictions,
such
be
should
eliminated, whether the
already
place
had
occurred or
in
should take
the future.
upon (and
majority
Plaintiff relies
the
cite) Fountain v.
(1958)
Cal.App.2d
State
Board
Education
157
469-
473
899],
P.2d
in
petition
which this court
a
[2-7]
denied
[320
hearing.
for
It
by
is established
law
the denial
this court
"
a hearing
not
expression
any opinion
is
to be taken as an
court, or
equivalent thereof,
regard
any
this
as the
in
matter of law
in
involved
the case and not
the
stated
opinion
approval by
. .
indeed,
.
an affirmative
nor,
propositions
court
opinion.
of law laid
down
such
.
..
significance
The
greater
no
refusal is
than this—that
this court does not consider that the
or
justice,
interests of
the
purposes
power
given, require
for which the
its exercise
particular
(People
(1905)
case.”
v. Davis
147 Cal.
718] ;
350
P.
(1925)
re Stevens
197 Cal.
423-424
[81
pointed
88].)
(1955)
P.
And as
out in Cole v. Rush
[241
345, 351,
fn. 3
1137],
A.L.R.2d
“The
[289
significance
particular
of a
denial in
case is also
be
qualified
understood as
further
the fact that under
a
Appeal
may
Rules on
no
than that a
denial
mean
more
ground
adequate
impellent
ordering
a
which we deem
hearing
(See
has not
brought
been
to our attention.
rule
”
Rules on Appeal.)
opinion
of the District
of Appeal
Court
Fountain,
insofar as relevant to the issue before
makes an
us,
excellent
presentation
proposition
of the basic
that statutes are not given retrospective operation
clearly
unless
made to
appear
legislative
that such was the
intent. As hereinabove
am in
proposition
stated I
full accord with that
but for the
both
and document am
I have tried to
elucidate
reasons
legislative intent is made clear. Fur
that here
satisfied
legisla
emphasized,
character of the
as I
thermore,
have
(for
protection of
chil
question
is remedial
tion
punish
convict).
(to
This
penal
further
dren) not
all, presented
if
adequately,
at
apparently was not
point
persuasive
Appeal. I therefore do
find
Court of
District
(p.
Cal.App.
proposition that
of 157
its
in this
final
case
penal
the law which would
a construction of
2d) “As between
hearing and
one
without
sex convict
ize him.
teacher]
[the
accomplish
hearing
the full
afford him
which would
preferred.”
to be
law,
the latter is
purpose of
retrospective
appli-
also contend
the issue
Defendants
adversely
statutes here involved was
determined
cation
opinion (DiGenova
earlier
our
to DiGenova
State
(1955), supra,
McComb,