SIMON UNZUETA, Plаintiff and Respondent, v. OCEAN VIEW SCHOOL DISTRICT, Defendant and Appellant.
No. B058873
Second Dist., Div. Six.
June 4, 1992.
A petition for a rehearing was denied June 26, 1992
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Lawler, Bonham & Walsh and Donald F. Austin for Defendant and Appellant.
Kronick, Moskovitz, Tiedemann & Girard and Donna Matties as Amici Curiae on behalf of Defendant and Appellant.
Hathaway, Perrett, Webster, Powers & Chrisman and Paul D. Powers for Plaintiff and Respondent.
A. Eugene Huguenin, Jr., Beverly Tucker, Diane Ross and Ramon E. Romero as Amici Curiae on behalf of Plaintiff and Respondent.
OPINION
YEGAN, J.—In 1935 Judge Learned Hand asked: “How far is a judge free in rendering a decision?” (Hand, The Spirit of Liberty (1952).) Judge Hand
We conclude that the trial court correctly found that Simon Unzueta was entitled to backpay 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 backpay. This amount of money represents Unzuеta‘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. (
Pursuant to
”
The charges against Unzueta were dismissed pursuant to
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 backpay pursuant to
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
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
There are situations when criminal cases are dismissed pursuant to
The language of
Given the language of
Although the District concedes that the trial court followed the clear terms of these statutory provisions, the District urges us to reverse the trial court because its ordеr violates common sense and public policy by rewarding a teacher for using drugs. Framing the issue in these terms illustrates the District‘s myopia. The legislative “reward” for use of drugs is criminal prosecution. The legislative reward for successful completion of diversion is dismissal of the criminal charge and rehabilitation of the experimental drug user by returning him to productive citizenship. When the successful divertee is a school teacher, an otherwise competent teacher is saved and backpay for time of suspension is given. Can we say, as a matter of law, that the Legislature did not intend this latter consequence given the language of
In essence, the District asks us to rewrite
The District argues that because diversion did not exist in 1955, when the predecessor of section 44940 was enacted, the Legislature did not intend to require school distriсts to reimburse teachers for backpay in such instances. The Legislature, however, has never made the right to backpay dependent on the particular circumstances under which the acquittal or dismissal was obtained. Section 44940 has been amended four times since
“The Legislature is presumed to know the existing law and have in mind its previous enactments when legislating on a particular subject. [Citation.]” (Rosenthal v. Cory (1977) 69 Cal.App.3d 950, 953 [138 Cal.Rptr. 442]; see also Bailey v. Superior Court (1977) 19 Cal.3d 970, 977, fn. 10 [140 Cal.Rptr. 669, 568 P.2d 394].) If the Legislature desired to preclude backpay for those who obtain dismissals through diversion, it could simply have said so. (Tiernan v. Trustees of Cal. State University & College (1982) 33 Cal.3d 211, 219 [188 Cal.Rptr. 115, 655 P.2d 317].)
Realizing perhaps that it has not demonstrated a legislative intent to preclude backpay in the present circumstances, District seizes upon an exception to the foregoing rules of statutory construction. In County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 849, footnote 6 [59 Cal.Rptr. 609, 428 P.2d 593], our Supreme Court said that ambiguity is nоt a condition precedent to interpretation in all cases. “‘The literal meaning of the words of a statute may be disregarded to avoid absurd results. . . .‘” (Ibid.; see also Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1098 [282 Cal.Rptr. 841, 811 P.2d 1025].)
This exception should be used most sparingly by the judiciary and only in extreme cases else we violate the separation of powers principle of government. (
We are not convinced as a matter of law that the Legislature did not intend the result we reach today. Phrased otherwise, we are not convinced as a matter of law that an award of backpay in these circumstances is “absurd.” Absurdity, like beauty, is in the eye of the beholder.
The comments of Lord Bramwell are here apposite: “‘I should like to have a good definition of what is such an absurdity that you are to disregard the plain words of an Act of Parliament. It is to be remembered that what seems absurd to one man does not seem absurd to another . . . I think it is infinitely better, although an absurdity or an injustice or other objectionable result may be evolved as the consequence of your construction, to adhere to the words of an Act of Parliament and leave the legislature to set it right than to, alter those words according to one‘s notion of an absurdity.’ Lord Bramwell, in Hill v. East and West India Dock Co., 9 A.C. 448, 464-65 (House of Lords, 1884).” (Aldisert, The Judicial Process (1976) p. 176.)
The dissent‘s answer to Lord Bramwell‘s quest for a definition of absurdity is: “I know it when I see it.” Since Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137 [2 L.Ed. 60] where Chief Justice Marshall said: “It is emphatically the province and duty of the judicial department to say what the law
Each time the judiciary utilizes the “absurd result” rule, a little piece is stripped from the written rule of law and confidence in legislative enactments is lessened. Retired Justice Macklin Fleming describes this as the “. . . devaluation of written law and of legislative authority of popular assemblies.” (Fleming, The Price of Perfect Justice (1974) p. 116, hereafter Fleming.) If the dissent had one additional vote, this court would sit as a “super-Legislature” with more than veto power over legislatiоn. The court would have the power to add and substract from the plain language of a statute. Lord Bramwell would not be pleased with the dissent‘s definition of absurdity.
Contrary to the dissent‘s claim, we do not adhere to the “dictionary school of jurisprudence” (dis. opn., post, p. 1705) or become “slaves to the tyranny of literalness” (dis. opn., post, p. 1703). Although we are not called upon to redecide Riggs v. Palmer (1889) 115 N.Y. 506 [22 N.E. 188], we agree that it would be absurd as a matter of law to allow a murderer to financially profit by inheriting from his victim. “No one can take advantage of his own wrong.” (
Contrary to the situation in Riggs v. Palmer, supra, where the statutes were silent on the issue, here the Legislature has not been silent. It must be emphasized that at the other end of the judicial dilemma is the judge literally “making law” according to what he or she subjectively “thinks best.” “[J]udicial legislation is all wrong because it is ineffectual. Experience has shown, and if the past is an accurate guide it will continue to show, that legislatures are better equipped, better informed, possess greater sensitivity, and exercise a broader vision in making new law than do the courts.” (Fleming, supra, ch. 13, p. 120.)
“[J]udicial self-restraint . . . [should not be] reliance on a rope оf sand.” (Fleming, supra, ch. 19, p. 160.) We hold that except in the most extreme cases where legislative intent and the underlying purpose are at odds with the plain language of the statute, an appellate court should exercise judicial restraint, stay its hand, and refrain from rewriting a statute to find an intent not expressed by the Legislature. (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271 [1 Cal.Rptr.2d 333].) “Our function is not to judge the wisdom of statutes. [Citations.]” (Wells Fargo Bank v. Superior Court, supra, 53 Cal.3d at p. 1099.) While application of section 44940.5 to the present situation may be unwise, it does not lead to “absurd results” as a matter of law allowing for statutory construction. (People v. Pieters (1991) 52 Cal.3d 894, 898 [276 Cal.Rptr. 918, 802 P.2d 420].) Thus, as to the first dilemma, we answer Judge Hand‘s question by following the plain language of the statutes which sufficiently show the underlying purpose. This was and is a legislative choice. We are not free to enforce what we think best. We hold that a diversion dismissal is within the purview of
Our holding may be of first impression but it was forseen in Sandoval v. State Personnel Bd. (1990) 225 Cal.App.3d 1498 [275 Cal.Rptr. 702]. There it was held that
The Second Dilemma
The District also urges us to order an offset of over $30,000, representing the amount Unzueta earned in other employment during the period of suspension. Unzueta contends and District concedes that there is no support for an offset in the statutory scheme for suspended teachers. Thus we confront the second dilemma.
“The cases have long held that the obligation to reimburse the teacher for the amount of salary wrongfully withheld may be mitigated by deducting
Relying on cases such as Orloff v. Los Angeles Turf Club (1947) 30 Cal.2d 110, 113 [180 P.2d 321, 171 A.L.R. 913], and Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 216 [185 Cal.Rptr. 270, 649 P.2d 912], Unzueta contends that the trial court correctly found that the statutory remedy for “full compensation” is exclusive to other remedies and no offset should be judicially created. There are two answers to this contention.
First, the trial court and this court are bound by pronouncements of the California Supreme Court where the facts of the present case are not fairly distinguishable from the facts of the case where the Supreme Court has declared the applicable principle of law. (People v. Triggs (1973) 8 Cal.3d 884, 891 [106 Cal.Rptr. 408, 506 P.2d 232]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) Here, the facts are not fairly distinguishable from those in Mass v. Board of Education, supra, 61 Cal.2d 612. The Supreme Court‘s declaration of a rule of law is, by itself, a “compelling reason” to disregard the plain meaning of the phrase “full compensation.” (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at p. 601.)
Second, “. . . in California there is a general policy giving full backpay awards upon reinstatement to a position because the compensation awards are designed to make the employee whole.” (Harris v. State Personnel Bd. (1985) 170 Cal.App.3d 639, 644 [216 Cal.Rptr. 274], italics added.) Here, affording Unzueta $40,000 in backpay would make him more than whole. In fact, all but approximately $10,000 of the judgment constitutes a windfall. “When the reason for a rule ceases, so should the rule itself.” (
In contrast to our resolution of the first dilemma, an award of full compensation would result in a total income to Unzueta of $70,000 for the period of his suspension. This would be an example of an extreme case where legislative intent and the underlying purpose of the law are at odds with the plain language of the statute. In this instance, we may interpret the words “full compensation” to avoid absurd results. (County of Sacramento v. Hickman, supra, 66 Cal.2d at p. 849, fn. 6.)
Thus, as to the second dilemma, we answer Judge Hand‘s question by avoiding аn absurdity and enforcing the underlying purpose of the statute. Of
The matter is remanded to the trial court for a determination of the actual offset. In all other respects, the judgment is affirmed. Each side to bear its own costs on appeal.
Stone (S. J.), P. J., concurred.
GILBERT, J.—I respectfully dissent.
Absurdity—I know it when I see it. I agree with my colleagues that absurdity is in the mind of the beholder. Perhaps I am too prone to see it, but its specter haunts me in this case.
The schоol teacher here is arrested for possession of cocaine. He admits this to his principal and also admits he was under the influence of cocaine when he was arrested. The school teacher is placed on a leave of absence from teaching pursuant to statute. He is in a drug diversion program for almost two years. During this time, the California Commission on Teacher Credentialing suspends his teaching credential.
After successfully completing the drug diversion program, criminal charges against the teacher are dismissed pursuant to
Under the majority holding, the teacher would have received the full $40,000 in backpay had it not been that he fortuitously earned money during his suspension. A literal reading of the plain language of
The school district‘s reference to County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 849, footnote 6 [59 Cal.Rptr. 609, 428 P.2d 593], is apt. The Hickman court acknowledged that in most cases ambiguity precedes interpretation. The Hickman court stated that “[a]lthough this proposition is generally true, ‘The literal mеaning of the words of a statute may be disregarded to avoid absurd results or to give effect to manifest purposes that, in the light of the statute‘s legislative history, appear from its provisions considered as a whole.‘” (Ibid., citing Silver v. Brown (1966) 63 Cal.2d 841, 845 [48 Cal.Rptr. 609, 409 P.2d 689].)
This case reminds me of Riggs v. Palmer (1889) 115 N.Y. 506 [22 N.E. 188]. Elmer was a beneficiary under his grandfather‘s will. He poisoned his grandfather and was convicted and sentenced to jail. The issue in Riggs was whether Elmer was entitled to inheritance under his grandfather‘s will. The New York statute of wills did not exclude a person who murdered the testator from taking under the will. Nevertheless, the majority opinion held that Elmer simply could not inherit.
Contemporary legal scholar, Ronald Dworkin, points out that the majority holding in Riggs gave the “legislators’ intentiоn an important influence over the real statute.” (See Dworkin, Law‘s Empire (1986) pp. 15-20.) The writer of the majority in Riggs “relies on the distinction between the text, which he calls the ‘letter’ of the statute, and the real statute, which he calls the ‘statute’ itself. It would be absurd, he thought, to suppose that the New York legislators who originally enacted the statute of wills intended murderers to inherit, and for that reason the real statute they enacted did not have that consequence.” (Id., at pp. 18-19.)
Relying upon a canon of construction, the majority in Riggs wrote “that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers.” (Riggs v. Palmer, supra, 22 N.E. at p. 189.)
The Riggs court concluded that if collateral consequences arise out of a statute which are contrary to common reason, then the statute should be void as to those collateral consequences. In Riggs, it goes against our system of shared values to have allowed the grandson to take under his grandfather‘s will. Such a result would be so unjust as to be absurd.
So, too, here would it be absurd and unjust to allow Unzueta to recover backpay. As the District points out, the purpose behind
The District may choose, as it did here, to place an employee on compulsory leave when that employee is charged with an offense. (
The District must so act when the prosecution fails to convince the trier of fact of the teacher‘s guilt beyond a reasonable doubt. It may also occur when the prosecution cannot proceed, for example, because a crucial witness fails to appear. In such cases, the teacher, or any other person for that matter, always carries with him or her the presumption of innocence. The teacher remains in the same position as though he or she were innocent of the charge.
In the diversion statute, a dismissal is occasioned by entirely different circumstances. As a rule, a person accepting diversion has committed an offense, but not always. Sometimes a person who is in fact innocent of an offense charged against him might nevertheless request diversion. The particular circumstances of the case might make conviction a possibility. Diversion avoids having to face that possibility. In any event, dismissal for suсcessful completion of diversion is of a different kind than is dismissal because of failure to prove the offense. Although for many purposes the two types of dismissal are treated the same, I doubt they were meant to be the same as far as
The majority concedes that for Unzueta to receive $40,000 from the school district after he had already received $30,000 for other employment during the time he was in the drug diversion program would be an absurd result. I applaud them for this insight. It is equally absurd, however, to award him $10,000, or any other amount of money.
If we can disregard the litеral meaning of the statute to avoid the absurdity of paying the teacher $40,000, we can do the same to avoid the absurdity of paying him $10,000.
I find the majority‘s quote from Judge Learned Hand ironic. The school district urged us to read this reprint of a radio address by Judge Hand to
My approach is not to assert judicial supremacy over the Legislature. Quite the contrary. By interpreting the language of
A mechanical, literal interpretation of the statute in the lifeless atmosphere of a vacuum creates a result contrary to public policy, contrary to legislative intent, contrary to common sense, and contrary to our shared notions of justice.
I would reverse.
A petition for a rehearing was denied June 26, 1992, and appellant‘s petition for review by the Supreme Court was denied August 20, 1992. Lucas, C. J., Mosk, J., and George, J., were of the opinion that the petition should be granted.