Opinion
Hearing Granted May 10, 1961.
Opinion vacated 18 Cal.Rptr. 369, 367 P.2d 865.
Stanley Mosk, Atty. Gen., Lee B. Stanton, Deputy Atty. Gen., Dion R. Holm, City Attorney of the City and County of San Francisco, San Francisco, Irving G. Breyer, San Francisco, of counsel, for appellants.
Leon E. Shiells, Menlo Park, for respondent.
COAKLEY, Justice pro tem.
This is an appeal from a judgment of the Superior Court of San Francisco, granting a peremptory writ of mandate. The writ directed the State Board of Education to reinstate the petitioner's teaching credentials, and directed the Board of Education of the City and County of San Francisco to reinstate the petitioner to his position as teacher. Also named as individual respondents in the proceedings below were numerous persons identified with the state or the San Francisco school system.
The petitioner below is the respondent herein, and will be referred to as DiGenova. The respondents below are the appellants herein, and will be referred to collectively by that name, and sometimes by their respective board or surname. History of the Case.
This case has had a long history of litigation. A clear understanding of this opinion requires that we relate that history. December, 1945, DiGenova was convicted of 'lewd vagrancy.' January, 1947, he was convicted of 'consorting.' These convictions were in the Municipal Court of Los Angeles. January, 1949, he received his first credentials to teach and became a teacher in the San Francisco school system. January, 1952, he acquired permanent tenure in that system. July, 1952, the Legislature added several sections to the Education Code 'relating to persons convicted of sex offenses in respect to employment in the Public School System * * *' Stats.1952, First Extraordinary Session, ch. 25, p. 389. The retroactive application of those amendments is the issue before us. April, 1953, the State Board of Education renewed DiGenova's credentials, for a period expiring November, 1956. In September, 1953, he was dismissed by the San Francisco board, and in October the state board revoked his credentials. The revocation and dismissal were without notice or hearing. DiGenova does not contend that the appellants had knowledge of his criminal record prior to the time they acted to remove him from the rolls as a teacher. December, 1953, he petitioned for a writ of mandate in the Superior Court of San Francisco. An alternative writ was issued on the same day, and in due course judgment granting a peremptory writ was entered. The respondents therein appealed. This court affirmed the judgment of the superior court. The decision of each court was upon the grounds that the respondent could not lawfully be deprived of his credentials and position in the absence of charges and a trial thereon. DiGenova v. State Board of Education, Dist.Ct. of Appeal, First Dist., Div. One, 1955, 283 P.2d 366. The Supreme Court vacated the opinion of this court, and reversed and remanded the case for trial on two issues which it specified. DiGenova v. State Board of Education, 45 Cal.2d 255, 288 P.2d 862. The two issues to be retried were (1) whether DiGenova's convictions were for sex offenses within the contemplation of the statute adopted in 1952, and (2) whether he was the person convicted. The latter was purely a question of identity. The Supreme Court's remittitur was filed with the clerk of the superior court on November 15, 1955. DiGenova did nothing to set the case for retrial until September 28, 1958, when he filed a motion to advance retrial date. His points and authorities recited that 'nothing has been done by the petitioner to reset this matter for trial' and under Code of Civil Procedure, § 583, the case must be dismissed unless brought to trial prior to November 15, 1958, to wit, within three years of the filing of the remittitur. DiGenova also stated therein that he wished to avail himself of the benefit of the opinion in Fountain v. State Board of Education et al., that case having been decided by the District Court of Appeal, Second District, Division 3, in February, 1958, 157 Cal.App.2d 463, 320 P.2d 899. The superior court advanced the trial date, as requested. Again that court, this time expressly and solely in reliance upon the Fountain case (the pleadings herein were not amended), ordered the issuance of a peremptory writ directed to the appellants to reinstate DiGenova's credentials and to reinstate him as a teacher. This appeal is from that judgment.
With the exception of the fact that there was but one appeal in Fountain, in contrast to two in this case, the two cases are virtually identical. In each, the petitioner had been convicted of 'lewd vagrancy' under Penal Code, § 647, subdivison 5. For the purposes of this opinion we disregard the 'consorting' conviction and rely solely on the 'lewd vagrancy' conviction. Each thereafter received teaching credentials from the state board, and became employed as a teacher. Thereafter the Legislature adopted the statute which we interpret herein (Stats.1952, ch. 25, p. 389). In each case, the state board revoked the petitioner's credentials, and the local school board terminated the employment of the respective Issues on this Appeal.
1. Did the Legislature Intend the Statute to Apply Retroactively? Yes.
Before discussing the particular statute with which we are here concerned and those in pari materia, it is in order to state certain rules of statutory construction which we deem applicable to this case. They are so basic as not to require discussion.
'[A]lthough the legislature has the power to give a statute retrospective operation, if it does not impair the obligation of contracts or disturb vested rights, yet it is presumed that no statute is intended to have that effect, and it will not be given that effect, unless such intention clearly appear from the language of the statute.' Krause v. Rarity, 1930, 210 Cal. 644, 655, 293 P. 52, 66, 77 A.L.R. 1327.
'The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] Moreover, 'every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.'' Select Base Materials, Inc. v. Board of Equalization, 1959, 51 Cal.2d 640, 645, 335 P.2d 672, 675.
"* * * [I]t is a cardinal rule of construction that words must be given such interpretation as will promote rather than defeat the general purpose and policy of the law * * *' [Citations.] It is well settled that 'where the language of a statute is reasonably susceptible of two constructions, one of which in application will render it reasonable, fair and harmonious with its manifest purposes, and another which would be productive of absurd consequences, the former construction will be adopted." City of Los Angeles v. Pac. Tel. & Tel. Co., 1958, 164 Cal.App.2d 253, 256-257, 330 P.2d 888, 890; Department of Motor Vehicles of California v. Industrial Accident Comm., 1939, 14 Cal.2d 189, 93 P.2d 131.
"Committee reports and explanatory statements of members in charge, made in presenting a bill for passage have been held to be a legitimate aid to the interpretation of a statute where its language is doubtful or obscure.' Southern Pac. Co. v. Industrial Accident Comm., 1942, 19 Cal.2d 271, 275, 120 P.2d 880, 883, and U.S. S.Ct. cases cited. Courts should adopt that interpretation of a doubtful statute which is in accord with legislative committee reports dealing with the legislation, rather than an interpretation which does violence thereto. Southern Pac. Co. v. Industrial Accident Comm., supra.
'In the absence of compelling language in the statute to the contrary, it will be assumed that the Legislature adopted the proposed legislation with the interest and meaning expressed by the council in its report.' Hohreiter v. Garrison, 1947, 81 Cal.App.2d 384, 397, 184 P.2d 323, 331. The council referred to in that case was the Judicial Council and was treated as a special legislative committee.
As noted, Statutes of 1952, First Extraordinary Session, chapter 25, added several provisions to the Education Code. They were not amendments of existing provisions. All dealt with eliminating convicted sex offenders from the public school system. In 1959 the sections were renumbered. Stats. 1959, ch. 2. However, with the exception of section 12912, there has been no change of substance with respect to any of the code sections added in 1952 which are involved in this case. Therefore, for convenience of reference, we shall use the current section numbers. The applicable sections are:
(1) Education Code § 13207.
'Whenever the holder of any credential, life diploma, or document issued by the (2) Education Code § 13218 imposed the same duty upon county boards, with respect to holders of certificates issued by such boards.
(3) Education Code § 13255 reads as follows:
'Governing boards of school districts shall not employ or retain in employment persons in public school service who have been convicted of any sex offense as defined in Section 12912 * * *'
(4) Education Code § 12912.
"Sex Offense' as used in Sections 13130, 13207, 13218, 13255, and 13586 of this code means any offense defined in * * * 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. * * *'
Section 13130 deals with sexual psychopaths and is not applicable except that it is part of the pattern of legislation on the general subject of sex offenders in school systems.
In 1955 section 12912 was amended to remove the reference to subdivision 1 of section 311, Penal Code, from its then location in that section, and the following words were inserted immediately following the words 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 * * *.' (Emphasis supplied.) The significance of this amendment will be discussed later.
Penal Code, § 647, subdivision 5, reads: '5. Every lewd or dissolute person, or every person who loiters in or about public toilets in public parks; * * * Is a vagrant, and is punishable by a fine * * * or by imprisonment * * *'
Although DiGenova contends that it has not been proved that he was convicted of a 'sex offense' as defined in the act, it is beyond question that he was convicted of violating Penal Code, § 647, subdivisions 5, and that it constituted a 'sex offense' within the meaning of Education Code, § 13207, and other applicable sections. This will be developed in detail in our discussion of Issue No. 4.
At the same 1952, First Extraordinary Session, at which the Legislature added sections 13207, 13218, 13255 and 12912, supra, and as a part of one legislative act, to wit, chapter 25 of said statutes, it also adopted other provisions, all on the subject of removing from the public school system persons convicted of sex offenses. Education Code, § 13586, was one of these. It reads as follows: 'No person shall be employed or retained in employment by a school district who has been convicted of any sex offense as defined in Section 12912. * * *'
All of the Education Code sections quoted above are found in part 2, division 10, of that code. That division is entitled simply 'Employees.' Section 12912 defining sex offenses, is found in chapter 1 of division 10, which chapter is entitled 'Provisions Applying To All Employees.' Sections 13207, 13218 and 13255 are found in chapter 2 of division 10. That chapter deals with 'Certified Employees,' i. e., teaching personnel. Section 13586 is found in chapter 3 of division 10 which chapter deals with 'Classified Employees,' i. e., non-teaching personnel.
A. The general purpose, scheme or plan of the 1952 amendments was to rid the public school system of all persons convicted of sex offenses regardless of date of conviction. This is apparent on the face of the legislation, and in our opinion is its only reasonable construction, the Fountain case notwithstanding. Thus we see that the state and local school boards were directed to revoke the credential and certificate (these terms apply to teaching personnel only) 'Whenever the holder * * * has been convicted of any sex offense * * *' We refrain from engaging in a semantic dispute with our learned colleagues of the Second District over the meaning of individual terms found in sections 13207 and 13218, such as 'Whenever,' 'forthwith,' and 'when.' Suffice that we respectfully disagree with their interpretation of those terms as applied to the statute in question. We prefer to place our reliance on the statute as a whole. Doing so, we find that sections 13255 and 13586 impose a duty on the local school board not to 'employ or retain' teachers (§ 13255) or non-teaching personnel (§ 13586) 'who [have] been convicted of any sex offense as defined in Section 12912.' (Emphasis supplied.)
The terms 'Whenever' and 'forthwith' which the Fountain case holds 'commonly denote future time' and on which terms that opinion largely turns, are not found in sections 13255 or 13586. [157 Cal.App.2d 463, 320 P.2d 904]
Assuming, for the purpose of discussion only, that sections 13207 and 13218, which deal only with the revocation of credentials and certificates, are ambiguous on the question of retroactivity the same cannot be said of sections 13255 and 13586 which deal exclusively with retention in employment. Clearly the latter sections require local school boards to dismiss teachers and nonteaching or classified employees who have been convicted of sex offenses. Equally clear, under long established rules of statutory construction, the sections must be read together under part of a pattern of legislation designed to accomplish a specific purpose, to wit, to eliminate all convicted sex offenders from the public schools.
To adopt DiGenova's reasoning that the act does not apply to pre-1952 convictions would produce this absurd result: A teacher, clerk or janitor who is convicted of a relatively minor sex offense after 1952 must lose his credential and position while a rapist, sodomist or sex deviate, with a teaching credential, whose conviction was in 1951, cannot be removed on those grounds. It is contrary to reason and common sense to attribute such an intent to the Legislature.
The amendment to Education Code, § 12912, supra, defining sex offenses, made at the 1955 session of the Legislature, provides a strong indication of the Legislature's own interpretation of chapter 25 of Statutes of 1952. The effect of that amendment is that the term 'sex offense' as used in Education Code, § 12912, shall include acts of indecent exposure (see Pen.Code, § 311, subd. 1) committed after the 1955 amendment. The clear inference is that a conviction for any sex offense as defined in Education Code, § 12912, excluding indecent exposure, committed prior thereto, and without limitation as to time, continued to be grounds for revocation and removal as provided in the 1952 amendments.
B. In constructing a statute of doubtful meaning, courts should adopt that interpretation which is in accord with the legislative committee reports dealing with the legislation. Soughern Pac. Co. v. Industrial Accident Comm., supra, 19 Cal.2d 271, 120 P.2d 880. Appellants' opening brief refers by title and date to 'five comprehensive Reports of the Assembly Subcommittee on Sex Crimes.'
DiGenova ignores this part of appellants' brief. In Fountain, the court dismissed the committee reports with the statement that they contained nothing in conflict with the court's views on the subject of retroactivity. We disagree. In August, 1952, the Assembly Subcommittee on Sex Crimes reported as follows:
'A review of the Education Code relating to person convicted of sex offenses in respect to their employment in the Public School System and to certification documents in connection therewith reflects that the laws are not sufficiently clear to assure that such a person could be prohibited from continuing to be employed in the Public School System of the State of California. 'Accordingly Assembly Bill No. 31 was passed by the California Legislature at the First Extraordinary Session, 1952, and became effective on July 2, 1952. The text of this law is as follows: * * *' (Emphasis supplied.) The statute with which we are here concerned is then set out in full. This report of the Assembly Subcommittee, concurred in unanimously by its members, followed a two-year study of the problem of sex offenses. The report leaves no doubt in the minds of the members of this court that the Legislature intended to rid the public schools of convicted sex offenders regardless of whether their conviction occurred before or after 1952.
C. The attorney general's opinion construing an act and the interpretation of the act by the administrative agencies charged with enforcing it are entitled to respect by the courts unless clearly erroneous. Mudd v. McColgan, 1947, 30 Cal.2d 463, 183 P.2d 10. In our case the attorney general unequivocally interpreted the 1952 amendments as operating retroactively and requiring the revocation of the credentials of a convicted sex offender, regardless of the date of conviction, including pre-1952 convictions. 20 Ops.Atty.Gen. 10. Appellants state in their briefs that since July 2, 1952, the state board had continuously followed the attorney general's opinion. Here again, DiGenova ignores the appellants' argument, and in Fountain, the court dismissed the attorney general's opinion with the statement that it is erroneous and therefore need not be considered. Again we must disagree, doing so in reliance upon the rule that unless it is clearly erroneous it is entitled to respect by the courts. Mudd v. McColgan, supra. We believe that the attorney general's opinion correctly states the law.
2. The Law of the Case.
The case was before the Supreme Court in 1955. It reversed the judgment of the trial court in favor of DiGenova, and vacated the opinion of this court which purported to affirm the trial court. The two opinions, in express terms, dealt primarily with the question of the legality of the procedure followed by the appellants, viz., revoking DiGenova's credentials and terminating his employment without preferring charges and without a hearing. That was the sole issue specified in DiGenova's petition for a writ. The Supreme Court held that notice and hearing were not required. Retroactivity was not mentioned in his petition, and was not discussed in our opinion or in that of the Supreme Court. The appellants argue, however, that of necessity the question of retroactivity was present and impliedly passed on by both this court and by the Supreme Court, adversely to DiGenova, and that therefore it became the law of the case.
'Where a question of law once determined is sought to be relitigated upon a second appeal to the same appellate court it is clearly established that the first determination is the law of the case and will not be re-examined in the absence of unusual circumstances leading to injustice or unfairness even though the issue sought to be raised involves the jurisdiction of the court on the prior appeal.' Gore v. Bingaman, 1942, 20 Cal.2d 118, 121, 124 P.2d 17, 19.
"The doctrine of the law of the case (in this state) does not extend to the facts or points of law which might have been but were not presented and determined on a prior appeal.' * * * The general rule is subject to an important exception: Where the particular point was essential to the decision, and the appellate judgment could not have been rendered without its determination, a necessary conclusion in support of the judgment is that it was determined. With respect to such a point the Davis v. Edmonds,
In ascertaining the law of the case the court may look not only to the opinion on the prior appeal but also to the record to determine whether the facts on which the former appeal was decided are the same as on this appeal. McKinlay v. Tuttle, 1872, 42 Cal. 570, 576; Otten v. Spreckels, 1920, 183 Cal. 252, 254, 191 P. 11; Estate of Baird, 1924, 193 Cal. 225, 223 P. 974.
'It is the settled rule that whatever issue was actually and necessarily included in a former judgment will be deemed to have been adjudged thereby. Code Civil Procedure, § 1911. It is equally well settled that a party cannot try his case by piecemeal. * * * It does not appear from the decision on that appeal whether this particular question was raised, but it might have been, and if it has any foundation it should have been.' Alphonzo E. Bell Corp. v. Bell etc. Synd., 1941, 46 Cal.App.2d 684, 692, 116 P.2d 786, 790.
In view of the record in this case the appellants are correct in their contention as to the law of the case. An examination of Justice Carter's opinion for a unanimous court, and of the concurring and dissenting opinion of Justice Edmonds (dissenting only as to a remand on the issues of the nature of the offense and petitioner's identity), satisfies us that the Supreme Court was aware that the convictions on which the revocation and the dismissal were based occurred prior to the 1952 amendments to the Education Code. In the appellants' return to the alternative writ they expressly incorporated by reference and affixed thereto certified copies of DiGenova's conviction of sex offenses in Los Angeles County in 1945 and 1947. No replication was filed and no proof offered to refute the records of conviction. Code Civ.Proc. § 1091. In appellants' briefs before this court in 1954, they devote three pages to a discussion of the opinion of the attorney general, supra, in which retroactivity was expressly covered, and to a recent decision of the Superior Court of Los Angeles holding the statute applied to convictions ante-dating 1952. The briefs before this court in 1954 were also before the Supreme Court when it considered the case in 1955.
We hold, therefore, that under the doctrine of the law of the case the question of retroactivity has been resolved against DiGenova by the Supreme Court. 45 Cal.2d 255, 288 P.2d 862.
This must also have been DiGenova's view of the Supreme Court's decision because he waited almost three years before bringing the case on for retrial. He did so then not to establish that he was not the DiGenova who had been convicted in 1945 and 1947, or that the convictions were not for sex offenses as defined in Education Code, § 12912, but solely because of the holding in the recent Fountain case that the statute is not retroactive. The law of his case was established by the Supreme Court's decision in 1955. Right or wrong, it is not affected by the decision of a lower appellate court handed down three years later in another although virtually identical case.
DiGenova seeks to counter this argument by pointing out that there is authority for the proposition that 'Where there has been an intervening decision by controlling authority which changes the case law, the doctrine will be disregarded.' (Emphasis supplied.) He cites Witkin, supra, at pages 2430 and 2431, and Standard Oil Co. of California v. Johnson, 1942, 56 Cal.App.2d 411, 132 P.2d 910, for his authority. We do not question the soundness of the exception. But DiGenova's difficulty here is that an intermediate appellate court (District Court of Appeal in Fountain) is not controlling authority, in relation to a Supreme Court decision (in DiGenova) establishing the law of the case. In the Standard Oil case, the controlling authority which prompted the District Court of Appeal's departure from the law 3. Waiver of Retroactivity by Failure to Raise the Issue.
Appellants next argue that by failing to raise the issue of retroactivity in the trial court (and on the first appeal) DiGenova is deemed to have waived it and was not entitled to assert it for the first time on retrial. His petition, filed in 1953, was based solely on the lack of charges and hearing. The trial court granted the writ as prayed. This court affirmed. The Supreme Court reversed. At no time until the retrial three years after the Supreme Court's remittitur and five years after his original petition was filed did he contend that the statute was not retroactive. He made no effort to amend his petition, though we attach little significance to this since he advised the trial court, on retrial, that the issue then was retroactivity. Where a case is tried on one theory, and a party fails at both the trial and on appeal to urge other grounds in support of his case, he is deemed to have waived them for the purposes of retrial. Davis v. Edmonds, 1933, 218 Cal. 355, 23 P.2d 289. We hold, therefore, that DiGenova waived the issue of retroactivity.
4. Was DiGenova Convicted of a Sex Offense.
DiGenova asserts that there is no evidence that he was convicted of a sex offense as defined in Education Code, § 12912, supra. The answer is two-fold: First, he is precluded from asserting that argument on this appeal because he failed to urge it on the retrial ordered by the Supreme Court on that very issue. Indeed, on the retrial counsel for DiGenova expressly stated to the court that the sole issue was whether the doctrine of nonretroactivity laid down in the Fountain case applied; further (counsel for DiGenova speaking) 'There was not any question today before the court as to the applicability of these certified copies of the record of conviction to Mr. DiGenova; and you will recall, I think, your Honor, at the last time we were in your department, that Mr. DiGenova was here and he briefly testified as to the record of his conviction, and so forth.' Second: one of the two convictions on which the appellants acted involved a violation of Penal Code, § 647, subdivision 5, commonly called 'lewd vagrancy.' We concur in that portion of the Fountain opinion which hold: 'We agree with the State Board that plaintiff was 'convicted' of a 'sex offense.' The undisputed facts are that Fountain was charged with violating section 647, subdivision 5 of the Penal Code (lewd vagrancy.) * * *. It cannot be doubted that Fountain was prosecuted for committing a 'sex offense,' as a violation of section 647, subdivision 5, is one of the crimes especially denominated as a 'sex offense' by section 12011.7 [now § 12912] of the Education Code.' Fountain v. State Bd. of Education, supra, 157 Cal.App.2d 463, 468, 320 P.2d 899, 902. DiGenova stands convicted of a sex offense within the meaning of Education Code, §§ 13207, 13218, 13255 and 12912. The point is without merit.
5. The Effect of the Supreme Court's Denial of a Hearing in the Fountain Case.
We shall not speculate as to why the Supreme Court denied a hearing in the Fountain case. As that court pointed out more than 50 years ago in People v. Davis, 1905, 147 Cal. 346, 81 P. 718, hearings may be denied for a variety of reasons, among them the tremendous burden upon the court occasioned not alone by the cases in which it writes opinions but by the very great number of matters it is asked to consider. This number is now more than 1900 per year. Eighteenth Biennial Report of the Judicial Council, 1961, p. 146. And as the court stated in the Davis case, supra, 147 Cal. at page 350, 81 P. at page 720, its denial of a hearing '* * * is not to be taken as an expression of any opinion by this court, or as the equivalent thereof, in regard to any matter of law involved in the case and not stated in the opinion of that In view of the judgment and opinions expressed herein, it is unnecessary to discuss the sixth and last issue raised. It involves a special objection by the appellants, the San Francisco Board of Education, its members and its superintendent, having to do with alleged lack of jurisdiction to retry the case as against said appellants.
The judgment is reversed.
BRAY, P.J., concurs.
TOBRINER, Justice.
I dissent. I do so primarily upon the ground that the problem which we probe here can only be resolved by clear legislative enactment.
The retroactive operation of a statute is not to be easily imported; retroactivity should be clear beyond doubt. Aetna Casualty & Surety Co. v. Industrial Accident Comm., 1947, 30 Cal.2d 388, 182 P.2d 159. The retroactive effect of a provision which liquidates the right to practice one's vocation or to earn his livelihood is particularly subject to meticulous scrutiny. This kind of enactment passes economic death upon the individual.
Yet obviously the legislation which we interpret here is not clear. The fact that my learned brethren of the Second District, Third Division, in Fountain v. State Board of Education, 1958, 157 Cal.App.2d 463, 320 P.2d 899, disagree with my learned colleagues of this court proves the ambiguity of the instant enactment. Moreover, two superior court judges have ruled that the statute is not retroactive. The result of the careful study of two trial and six appellate judges is the rendition of diametrically opposed interpretations. At the least the Legislature must express the retroactive application of legislation, so drastic as this, in terms that are specific, clear, and not subject to ambiguity. Absent such clarity, I am unwilling to construe it into retroactive effect.
There is a second reason for interpreting the legislation as prospective, rather than retroactive in effect. Our state today is honeycombed with licensing boards of one kind or another, established by the Legislature, which command the right to earn one's livelihood. Organizations, such as labor unions, and others of a similar nature, which do not derive their powers from legislation but are economically so empowered, likewise possess, thru the right of suspension and expulsion, control over the livelihood of individuals. Both types of administrative institutions may attempt to enact requirements which impinge upon the individual's right to earn his livelihood because of activities, past or current, which, at the time of the enactment, become anathema. It would be extremely dangerous to hold that such provisions are retroactive unless they clearly so state. In the specific application of the instant statute, this danger is not lessened by the fact that the teacher may be deprived of his credentials without charges or a hearing.
While this case has been previously presented to the Supreme Court (DiGenova v. State Board of Education, 1955, 45 Cal.2d 255, 288 P.2d 862), the majority opinion does not analyze the crucial question of retroactivity. Even assuming the issue were before the court then, I believe this situation presents the 'unusual circumstances leading to injustice or unfairness' described in Gore v. Bingaman, 1942, 20 Cal.2d 118, 121, 124 P.2d 17, which warrants its re-examination. The ruling in Fountain has intervened. It would be a sorry performance of the judicial process if it were to render contradictory decisions in 'virtually identical' cases, apparently upon the sole ground that one teacher bore the name of Fountain and another DiGenova. The course of these legal developments renders the argument that DiGenova 'waived' his defense nothing more than a highly technical construction to excuse a failure of equal justice.
The ambiguity of the present statute in my opinion dictates legislative clarification.