Opinion
As Amended on Denial of Rehearing April 1, 1964. Marshall W. Krause, Staff Counsel, American Civil Liberties Union of Northern California, San Francisco, Albert M. Bendich, Berkeley, for John W. Mass.
Thomas M. O'Connor, City Atty. of City and County of San Francisco, George E. Baglin, Deputy City Atty., San Francisco, for The Bd. of Education of San Francisco, Unified School Dist., Irving G. Breyer, San Francisco, of counsel.
Joseph Genser, Richmond, for California State Federation of Teachers, amicus curiae in support of contentions of appellant.
DRAPER, Presiding Justice.
This appeal is the third in this litigation. Plaintiff was a tenure teacher at San Francisco City College. Pursuant to statute (Educ.Code, § 12955, then § 12604) he was suspended December 8, 1953 for failure to answer questions before a congressional subcommittee. He demanded a hearing, and the school board filed an action (Educ.Code § 13412, then § 13529), setting up the charges against Mass. The trial court found that the charges were true and constituted grounds for dismissal. On appeal, the Supreme Court construed the statute to require hearing and determination of the sufficiency of the teacher's reasons for invoking the privilege against self-incrimination (Board of Education of San Francisco Unified School Dist. v. Mass, 47 Cal.2d 494, 304 P.2d 1015). The case was remanded for trial of that issue. Remittitur was filed January 27, 1957. On April 18, 1961, Mass. sought dismissal because the action had not been retried within 3 years after remittitur (Code Civ.Proc. § 583). The motion was denied, but the District Court of Appeal issued writ of mandate requiring that it be granted (Mass v. Superior Court, 197 Cal.App.2d 430, 17 Cal.Rptr. 549). Dismissal was entered in the trial court January 30, 1962. Mass. thereupon demanded reinstatement and back pay and, upon refusal, brought this proceeding in mandamus seeking that relief, as well as $50,000 as damages for mental and physical suffering.
The 'trial' consisted wholly of arguments by counsel. They stipulated to no facts, but did appear to fail of disagreement that: Plaintiff taught under a general secondary credential; it expired November 30, 1956; on May 30, 1960, he applied for reissue and on April 6, 1961 the State Board of Education issued to him a junior college credential, dated back to May 30, 1960. The local board asserts that it first learned of the credential lapse in September 1960 and promptly adopted a resolution terminating plaintiff's employment as of December 1, 1956. Apparently this was done without notice to plaintiff. There is some suggestion that requirements for the junior college credential issued in 1961 are less than for the general secondary, but no showing whether the credential issued qualifies plaintiff for the teaching position he formerly The trial court struck plaintiff's claim for general damages, ordered payment of salary from date of suspension to November 30, 1956 only, and denied his claim for reinstatement. Both parties appeal.
The issue for trial of which the Supreme Court remanded the case in 1956-the sufficiency of plaintiff's reasons for invoking the privilege against self-incrimination--has not been tried or determined. Nor can it be. The sole statutory proceeding (Educ.Code § 13412 et seq.) for determination of that issue has been dismissed and the judgment of dismissal is final. Under the strict statutes of limitation, no new statutory proceeding can now be filed (Educ.Code § 13413) or tried (Educ.Code § 13433).
Each party seeks advantage in this stalemate. Plaintiff argues that the burden of going forward was upon the board, and the latter suggests that plaintiff's insistence upon dismissal has created the problem. Plaintiff's argument is the more reasonable. The Legislature could have placed upon the suspended teacher the burden of suing to establish his right to his job. It did not do so. Rather, the statute requires the board to institute the action to determine the sufficiency of the grounds for dismissal (Educ.Code § 13412). The teacher is discharged only if the board prevails. 'Otherwise the employee may not be dismissed as the result of the charges * * *' (§ 13436). Thus a judicial determination adverse to the teacher is an essential condition precedent to his dismissal, and it seems clear that impossibility of such determination operates to compel his reinstatement. We are not concerned with the causes for delay in trial. If material at all, they could be considered only on the motion to dismiss.
It follows that, so far as concerns the original grounds for suspension or dismissal, plaintiff is entitled to reinstatement.
Thus we must determine the effect of the 1956 lapse of plaintiff's teaching credential. We reject respondent Board's contention that the lapse amounted to an automatic termination of plaintiff's employment. It is true that the code prohibits either employment (§§ 13251, 13252, 13274) or payment (§ 13511) of a teacher who does not hold a credential. But the Legislature has formally recognized that 'There are many teachers who through inadvertence or misunderstanding failed to make application' for renewal of teaching credentials (Stats.1959, c. 193, § 8, p. 2087). That finding was made in declaring the urgency of curative statutes designed to permit payment, despite Section 13511, of teachers whose certification had lapsed and been renewed. Many such curative or relieving statutes have been adopted in the past (Stats.1953, c. 621; Stats.1955, c. 1673; Stats.1957, c. 896; Stats. 1st Ex.Sess.1958, c. 68; Stats.1961, c. 898). Payment to such a teacher is now permitted upon approval by the State Board of Education (§ 13515). Moreover, there is indication (§ 13516.5) of a legislative intent to permit such payment to a teacher who has been discharged and reinstated by court order. It seems clear that the statutory scheme does not contemplate automatic discharge of a teacher whose credential lapses through mere inadvertence or misunderstanding.
But there is no conceivable basis for extending such relief to a teacher who lacked the professional qualifications for renewal of his certificate. There is no evidence in this case that Mass. was qualified, from 1956 to 1961, for a credential permitting him to occupy the position from which he was suspended, nor is there evidence of any determination of that issue by the State Board of Education. There is no Upon remand for trial of this issue, the court should also determine plaintiff's earnings during any period for which he is entitled to his teaching salary. '[I]t is only equitable and just that any remuneration received from such employment be deducted from the accrued salary due him' (Wiles v. State Personnel Board, 19 Cal.2d 344, 352, 121 P.2d 673, 677; Rexstrew v. City of Huntington Park, 20 Cal.2d 630, 634, 128 P.2d 23; Stockton v. Department of Employment, 25 Cal.2d 264, 273-274, 153 P.2d 741). We find no reason to distinguish between teachers and other public employees in this respect. The decision relied upon by plaintiff (LaRue v. Board of Trustees, 40 Cal.App.2d 287, 104 P.2d 689) holds only that a teacher who is wrongfully discharged need not seek other employment. We do not find in the code section upon which plaintiff relies (§ 13439) an intent to rescind the equitable rule announced in Wiles.
We find no merit in plaintiff's claim that the trial court erred in refusing to entertain plaintiff's claim for damages other than salary (Waymire v. Placer Joint Union High School District, 214 A.C.A. 400, 29 Cal.Rptr. 459; Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224, 230-231, 11 Cal.Rptr. 97, 359 P.2d 465). Nor is there merit in the board's reliance upon defenses of laches and the statute of limitations. Similarly without merit is the board's argument that the petition is deficient for failure to allege that funds are available to pay plaintiff's salary (LaRue v. Board of Trustees, supra, 40 Cal.App.2d 287, 295-296, 104 P.2d 689).
The judgment is reversed and the cause remanded for proceedings consistent with the views herein expressed. Each party shall bear his own costs on appeal.
SALSMAN and DEVINE, JJ., concur.