Woodard v. Personnel Commission of the Compton Unified School District

Code of Civil Procedure section 1094.5, under which appellant sought review by the superior court of the decision of the administrative board that had upheld his termination, was enacted by the Legislature in 1945. This section authorizes the reviewing court to exercise its independent judgment in certain types of cases. Therefore, it has been held that section 1094.5 empowered the Supreme Court to “establish standards for determining which cases require such independent judgment review and which call for only a substantial evidence review of the entire record.” (Bixby v. Pierno (1971) 4 Cal.3d 130 , 140 [ 93 Cal.Rptr. 234 , 481 P.2d 242 ], citing Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907 , 914-915 [ 80 Cal.Rptr. 89 , 458 P.2d 33 ].) Subsequently, in Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28 [ 112 Cal.Rptr. 805 , 520 P.2d 29 ], the Supreme Court held that there, was no longer “any rational or legal justification for distinguishing with regard to judicial review between, on the one hand, local agencies and state agencies of local jurisdiction and, on the other, state agencies of legislative origin having statewide jurisdiction.” (11 Cal.3d at p. 32.) Accordingly, the court held “that the rule of judicial review applicable to adjudicatory orders or decisions of the latter class of agencies—which was reaffirmed and explained to us in Bixby—is also applicable to adjudicatory orders or decisions of agencies in the former class. That rule is as follows: If the order or decision of the agency substantially affects a fundamental vested right, the trial court, in determining under section 1094.5 whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence. If, on the other hand, the order or decision does not substantially affect a fundamental vested right, the trial court’s inquiry will be limited to a determination of whether or not the findings are supported by substantial evidence in the light of the whole record.” (Id., at p. 32.)

To resolve the problem presently posed, we deem it appropriate to review the basic policy reasons behind the Bixby decision, and thus behind the concept of judicial review of administrative decisions.

The court in Bixby ( 4 Cal.3d 130 ) noted initially that the separation of powers doctrine, as articulated in the California Constitution, article III, derives from a basic philosophy of our constitutional system of government, that of the system of checks and balances by which one branch of government is protected against the overreaching of any other branch. “Of such protections, probably the most fundamental lies in the power of

the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority. [Citations.] Because of its independence and long tenure, the judiciary probably can exert a more enduring and equitable influence in safeguarding fundamental constitutional rights than the other two branches of government, which remain subject to the will of a contemporaneous and fluid majority. [Citations.]” (Id., at p. 141.)

The court then went on to survey the changes wrought in our government due to the proliferation of administrative bureaus, and the initial concern by the courts that this burgeoning bureaucracy would endanger individual rights. However, in the late 1930’s, the courts redefined their role in this area by allowing the legislative and executive branches of government to deal with economic complexities, while reserving judicial intervention for protection of vested fundamental rights.

Earlier in Bixby, the court, in pointing to the case law from which section 1094.5 originally sprang, recognized that a significant step occurred in 1939 when the case of Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75 [ 87 P.2d 848 ], held that the decisions of the State Board of Funeral Directors suspending two embalmers’ licenses must be reviewed by the trial court exercising its independent judgment on the facts. (13 Cal.2d at pp. 82-85.) In reaching this decision, the court in Drummey quoted from St. Joseph Stock Yards Co. v. United States (1936) 298 U.S. 38 , 52 [ 80 L.Ed. 1033 , 1041, 56 S.Ct. 720 ], as follows: “ ‘Legislative agencies, with varying qualifications, work in a field peculiarly exposed to political demands. Some may be expert and impartial, others subservient. It is not difficult for them to observe the requirements of law in giving a hearing and receiving evidence. But to say that their findings of fact may be made conclusive where constitutional rights of liberty and property are involved, although the evidence clearly establishes that the findings are wrong and constitutional rights have been invaded, is to place those rights at the mercy of administrative officials and seriously to impair the security inherent in our judicial safeguards. That prospect, with our multiplication of administrative agencies, is not one to be lightly regarded.’ ” ( 13 Cal.2d 75 , 85.) The court in Bixby ( 4 Cal.3d 130 ) then paused in footnote 4 (p. 138) to note that although St. Joseph Stock Yards and Ohio Valley Water Co. v. Ben Avon Borough (1920) 253 U.S. 287 [ 64 L.Ed. 908 , 40 S.Ct. 527 ], served as the initial impetus for Drummey, their interest has been described as purely

As a result of the position taken by the board and the fact that under Civil Service Commission v. Superior Court, supra, 63 Cal.App.3d 627 , appellant, himself, was not entitled to a transcript, appellant was virtually in a classic “Catch-22” position, it being more than likely that the existence of a tape was unknown to him. It was maintained by the board that a transcript was essential, but appellant could not obtain it due to his indigency, which here was, in turn, the result of his being terminated by the board.

Nonetheless, the trial judge purported to use his independent judgment in denying the writ. However, in so doing, he stated: “I find that there was evidence in here that there was a dereliction of duty and that there was discourteous treatment of fellow employees, particularly his boss,. . . [¶] I will make an independent judgment to that effect from what I have read in the record, and I have read the entire record. But even if this is not a case for independent judgment, the hearing officer certainly had a basis for his conclusion and the ultimate decision in this case.” Then, in response to an inquiry from appellant’s counsel as to whether he might consider sending the case back to the board so that it could reexamine the severity of the penalty, the judge replied: “Without a transcript, I can’t be that definitive, so I am not going to do it.”

We feel that the judge did not in fact use the required independent judgment, as on the state of the record before him he could not have done so. Even the way in which he rendered his judgment points to the fact that he only found that the decision of the board was supported by substantial evidence, a less stringent test than that which is appropriate in a case where the administrative agency’s action affects a vested fundamental right. (Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d 28 .) Therefore, appellant did not get that independent judicial review of the administrative decision to which he is entitled.

With the policy articulated above upon which both the courts and the Legislature in California have based their judgment that a petitioner in appellant’s position is entitled to an independent judicial review fully in mind, we find that the trial court erroneously refused to exercise its discretion and order that the administrative agency furnish it with a transcript of the proceedings (or the tape recordings). In light of the agency’s refusal to accept as true petitioner’s statement of the case or to supplement the statement so as to bring it into conformity with the record, this was the only way for the court to establish the evidence of the litigation before it. To hold otherwise would allow the personnel

commission to foreclose appellant’s right to independent judicial review. We do not hold that in every case an administrative agency such as respondent must supply a transcript of its proceedings to an indigent petitioner seeking to attack them. When, as here, however, the administrative agency asserts that a review of the complete record is the only way, or perhaps even simply the best way, that a trial court can exercise its judgment and then refuses to assist the petitioner in compiling an agreed summary of the facts, the agency can be foreclosed from disputing petitioner’s statement of fact or compelled to produce the needed transcript. We note the simplicity of either placing the tapes in evidence or comparing the contents of the tapes with the offered statement of facts.

There was no indication in Civil Service Commission v. Superior Court, supra, 63 Cal.App.3d 627 , that the indigent litigant could not have proceeded on an agreed or settled statement of the facts, or by references to existing tape recordings. Apparently there was no exploration of those possibilities since the trial court granted his request for a transcript before trial began. In allowing, in this case, the court to exercise its discretion by ordering the transcript filed (or the tapes produced) with the court when respondent refused to accept petitioner’s statement, we do not counter the decision in Civil Service Commission. That the court in that case refused to decide the very issue that is presented here points to the fact that it recognized that there might be a situation where the court could make such an appropriate order. We believe that this is such a situation, and that even though the court did not have the power to initially order a transcript for Woodard (as it recognized in denying his request for such prior to trial), once the true posture of the case became apparent at trial, a continuance in order to allow the agency to have the transcript prepared and filed with the court was not only possible, but apparently necessary. At the very least, the tapes should have been placed in evidence and the contents reviewed by the judge.

We also note that it was the absence of the transcript that lead the judge to decline to send the case back to the administrative board to reconsider the severity of the penalty imposed. Since we have determined that the case must be remande^ for proceedings consistent with the views expressed herein, we take this opportunity to briefly set out the legal standards by which the trial court is to judge the penalty imposed, in this case the most severe possible, termination.

In Shelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [124 Cal.Rptr." 14, 539 P.2d 774 ], citing Harris v. Alcoholic Bev. etc. Appeals Bd.

(1965) 62 Cal.2d 589 , 594 [ 43 Cal.Rptr. 633 , 400 P.2d 745 ], the court said: “Generally speaking, ‘[i]n a mandamus proceeding to review an administrative order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion.’ ([Citations.]; Martin v. Alcoholic Bev. etc. Appeals Bd. (1961) 55 Cal.2d 867 , 876 . . .)” (Id, at p. 217.) The court then pointed out that although the board has broad discretion in determining what penalty or discipline to impose, “ ‘it does not have absolute and unlimited power. It is bound to exercise legal discretion, which is, in the circumstances, judicial discretion.’ Harris, supra, citing Martin, supra, and Bailey v. Taaffe (1866) 29 Cal. 422 , 424.)” (Id., at pp. 217-218.) Finally, the court said that the overriding consideration in determining if there has been an abuse of discretion is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, harm to the public service, but that other factors are the circumstances surrounding the misconduct charged and the likelihood of its recurrence. (See also Blake v. State Personnel Board (1972) 25 Cal.App.3d 541 , 550-551, 554 [ 102 Cal.Rptr. 50 ].) With the transcript of the administrative proceedings in front of it, or the tapes placed in evidence and contents considered, and the above principles as guidance, the trial court, on remand, will be able to make an independent judgment and determine from the entire record whether the findings of the commission are supported by the weight of the evidence, whether the decision is supported by the findings, as well as whether the penalty imposed is excessive.

The judgment is reversed and the case remanded to the lower court for proceedings consistent with the views expressed herein.

Kaus, P. J., and Hastings, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied April 19, 1979.