I concur generally with the dissenting opinion of Justice Sullivan, but I am impelled to express an additional view.
The majority opinion of this court contains an elaborate discussion of varying factual situations in which homosexual acts could occur, states that *251the record contains no finding of petitioner’s unfitness to teach and remands the case to the trial court for further proceedings consistent with its opinion as though the further trial of an action at law were contemplated. Yet no factual or evidentiary issues are presented to a reviewing court by this case; it is agreed that the facts found by the State Board of Education are supported by the evidence produced before it. The majority’s reversal of the board’s action, therefore, must be viewed as a ruling on a question of law, that is, a holding that on the facts found here it is error to conclude that immoral or unprofessional acts were committed or that the acts that were committed involved moral turpitude. I do not agree with that conclusion for it is evident to me that the State Board of Education properly exercised the statutory discretion vested in it in this case and that its decision should be sustained on judicial review in any court of law.
Beyond that issue, however, lie the continuing difficulties inherent in a system of judicial review that requires courts to reweigh the evidentiary matters that are presented to it in the cold record of an administrative proceeding. This case, and other recent cases,1 have involved the courts in the untenable position of attempting to assess factual issues of conduct, motive and intent that could better be left to the governmental agencies upon whom the discretion has been conferred by the Legislature. I acknowledge, of course, the statutory requirement for reweighing evidence under which trial courts must now conduct the judicial review of some administrative actions (Code Civ. Proc., § 1094.5), but that category of proceedings was created and is defined by this court’s opinions in the field of constitutional law.2 After long and earnest consideration of the matter I must express my own conviction that neither the Constitution of the United States nor the Constitution of the State of California compels any such result.
In California, unlike most other jurisdictions, trial courts are presently required to exercise their own independent judgment, based upon the weight of the evidence, in reviewing those decisions of statewide, legislatively created administrative agencies that are alleged to deprive one of his “vested rights.” However, our trial courts are permitted to employ the ordinary substantial evidence review of all other administrative decisions, including *252the rulings of “local agences”* 3 and statewide agencies constitutionally empowered to exercise “judicial functions,”4 **even if their rulings affect “vested rights.”
Apart from the artificiality of any distinction which makes the applicable scope of review dependent upon the type of agency involved and the type of rights affected, each of the above-quoted phrases has raised its own peculiar interpretive problems, thereby requiring an undesirable “case-by-case” approach to deciding what kind of judicial review is appropriate.5 A return6 to uniform use of substantial evidence review of administrative decisions would eliminate these unworkable distinctions, and would assure that administrative expertise and discretion in factfinding are given the weight and consideration accorded by courts in other jurisdictions.7 Our courts could then perform the function courts perform elsewhere, that of ruling on issues of law, including the question of whether administrative orders are supported by substantial evidence, except in cases where the Legislature provides for a judicial reweighing of the evidence.
McComb, J., concurred.
Compare Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67 [64 Cal.Rptr. 785, 435 P.2d 553].
See Tenth Biennial Report, Judicial Council of California (1945) pp. 139-143. This court should re-examine and ultimately reject the reasoning of the cases which established as a constitutional doctrine the requirement of a weight of evidence review of certain decisions of statewide, legislatively created administrative agencies. For example, Laisne v. California State Board of Optometry, 19 Cal.2d 831 [123 P.2d 457]; Drummey v. State Board of Funeral Directors, 13 Cal.2d 75 [87 P.2d 848]; Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557 [59 P.2d 119].
E.g., Walker v. City of San Gabriel, 20 Cal.2d 879 [129 P.2d .349, 142 A.L.R. 1383].
E.g., Covert v. State Board of Equalization, 29 Cal.2d 125 [173 P.2d 545].
See California Administrative Mandamus (Cent. Ed. Bar 1966) §§ 5.50-5.75, pp. 63-91; 3 Witkin, Cal. Procedure (1954) Extraordinary Writs, p. 2484 et seq.; Kleps, Certiorarified Mandamus Reviewed: The Courts and California Administrative Decisions—1949-1959 (1960) 12 Stan.L.Rev. 554, at 560-568; 2 Cal.Jur.2d, Administrative Law, p. 86 et seq.
Prior to Standard Oil Co. v. State Board of Equalization, supra, 6 Cal.2d 557, all administrative decisions were reviewable on certiorari by a substantial evidence test. (McGovney, The California Chaos in Court Review of the Decisions of State Administrative Agencies (1942) 15 So.Cal.L.Rev. 391.)
See 4 Davis, Administrative Law Treatise, ch. 29, §29.01, pp. 114-118; Netterville, Judicial Review: The “Independent Judgment” Anomaly (1956) 44 Cal.L.Rev. 262.