CIVIL SERVICE COMMISSION OF LOS ANGELES COUNTY, Pеtitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; RONALD PRICE, Real Party in Interest.
Civ. No. 48708
Second Dist., Div. One.
Nov. 9, 1976.
61 Cal. App. 3d 627
John H. Larson, County Counsel, and David L. Muir, Deputy County Counsel, for Petitioner.
No appearance for Respondent.
OPINION
THOMPSON, J.-In Ferguson v. Keays (1971) 4 Cal.3d 649 [94 Cal.Rptr. 398, 484 P.2d 70], our Supreme Court held that there is an inherent judicial power to waive filing fees on appeal upon a showing of the appellant‘s indigency but expressly did not decide “the question whether indigents must be given funds by the county or some other source in order to pay transcript fees, publication costs, or other similar third-party charges.” (4 Cal.3d at p. 654.) About three years after Ferguson, the Supreme Court denied hearing in Leslie v. Roe (1974) 41 Cal.App.3d 104 [116 Cal.Rptr. 386], which holds that indigency does not entitle a party to a civil action to a transcript prepared at public expense to aid him in appealing an unfavorable judgment. (41 Cal.App.3d at p. 107.) The matter at bench involves the application of the Leslie rule in the context of the right of an indigent person seeking judicial review of an administrative determination to a transcript of the administrative record at the expensе of the agency where that transcript is required so that the reviewing court may exercise its independent judgment of the evidence as required by Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44-45 [112 Cal.Rptr. 805, 520 P.2d 29].
Recognizing that there may be very good reasons for a contrary result, we conclude that compelling precedent dictates that a court is without power to order that an indigent person seeking judicial review of the administrative proceeding involving an economic interest be supplied with a transcript of the proceedings at the expense of the agency. Accordingly, we issue a peremptory writ overturning a trial court order directing the agency to furnish such a transcript.
Ronald Price was employed as a tram operator in a juvenile facility of the Los Angeles County Probation Department. Charged with assault with a deadly weapon upon his wife, Price pleaded guilty to the charge. On November 25, 1974, he was given notice that he was discharged from the county civil service. Price requested a hearing on the charge against him. The hearing was conducted by a hearing officer of the Los Angeles
Pursuant to
Price filed a motion in the trial court asking that the commission be directed to supply him with a transcript of the proceedings before the hearing officer. The motion is accompanied by a declaration of indigency and counsel‘s declaration of merit satisfying the procedural requirements set forth in Ferguson v. Keays, supra, 4 Cal.3d 649, 657-659. The superior court in which the petition for writ of mandate was pending granted the motion and ordered that the commission “provide [Price], free of charge, a copy of the Reporter‘s Transcript of the Civil Service Commission hearing at issue.”
The commission sought a writ of mandate or prohibition from this court to overturn the superior сourt‘s order on the motion. We issued our alternative writ.
The process of judicial review of administrative proceedings encompassed in
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937] dictates unequivocally that we follow the rule enunciated by the high court. There is no exception in Auto Equity Sales for Supreme Court cases of ancient vintage. If I.X.L. Lime Co. does not comport with the standards of review required by Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d 28, 44-45, where the party seeking judicial review is indigent, that proposition is not ours to announce.
Crespo v. Superior Court (1974) 41 Cal.App.3d 115 [115 Cal.Rptr. 681], upon which Price relies for a contrary result, is distinguishable from the case at bench. Crespo holds that
Price also asserts that due process and equal protection of the law require that he be supplied with a free transcript in view of his indigent status. Authority is to the contrary where the interest which an appeal seeks to protect is an economic one. (Ortwein v. Schwab (1973) 410 U.S. 656, 659 [35 L.Ed.2d 572, 575, 93 S.Ct. 1172]; United States v. Kras (1973) 409 U.S. 434 [34 L.Ed.2d 626, 93 S.Ct. 631].)
Finally, Price argues that
Bound by I.X.L. Lime, we conclude that the trial court was without power to order that Price be supplied with a copy of a transcript of the administrative hearing prepared at the agency‘s expense. Let a peremptory writ of mandate issue directing the superior court to vacate its order of April 22, 1976, and to enter a new order denying Price‘s motion for a transcript.
Lillie, Acting P. J., concurred.
HANSON, J., Concurring and Dissenting.-The case at bench falls in the field of substantive and procedural civil law involving personal economic interests as distinguished from the field of criminal law where personal liberty may be at stake. Its posture before the superior court is on the review or appeal level as distinguished from the fact finding or trial level.
The underlying fundamental issue, framed by the briefs, is whether or not the superior court in an administrative mandamus proceeding, such as described in the majority opinion, has the authority or is otherwise
The answer to the above fundamental issue turns on whether or not there is constitutional, statutory or common law authority vesting such power in the superior court. In their thorough briefs the agency (Commission) contends there is no such authority while Price argues the opposite view.
The majority opinion, in its body, elects to base its “reversal” on the very narrow ground that the reviewing “superior court did not order the administrative record [transcript] filed with it [the court]. Rather, it [the court] ordered that the transcript be supplied by the agency to Price.” It (the majority opinion in its body) expressly states it does not “reach” the critical legal issue of whether or not a civil litigant, found to be indigent, appealing an adverse finding to the superior court in an administrative mandamus proceeding pursuant to section 1094.5 hаs the right to be furnished a free transcript at public expense.1
In my view whether the superior court orders the agency to supply a free transcript at public expense to Price, an indigent, for him to file with the court in pursuit of his civil appeal or orders the agency to supply a free transcript at public expense to be directly filed with the court for consideration of Price‘s civil appeal is a distinction without a difference, sidesteps the determinative issue, resolves nothing, results in a considerable waste of time and effort by court and counsel and delays the resolution of an issue of considerable interest not only to the legal community but also to the public in general.
I would therefore address the broad fundamental issue as to whether or not there is any constitutional, statutory or common law authority vesting the superior court with the power to order the agency (here the Cоmmission) to supply an indigent litigant (here Price) in a civil appeal (as present in the instant case) a reporter‘s transcript of the proceedings before the hearing officer free of charge and at public expense.
The statutory guidelines to perfecting the record for review of administrative orders or decisions are contained in the
I focus on and construe section 1094.5 in light of the facts of the instant case and well established rules of statutory construction.
“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.’ [Citation.] If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. [Citation.] Such purpose will not be sacrificed to a literal construction of any part of the act....” (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645 [335 P.2d 672]; see also, Moyer v. Workmen‘s Comp. Appeals Bd. (1973) 10
In addition, “Statutes must be construed in a reasonable and commonsense manner, not in a manner that would lead to absurd consequences. The rule is well established 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 purpose, and another which would be productive of absurd consequences, the former construction will be adopted.‘” (City of L.A. v. Pac. Tel. & Tel. Co. (1958) 164 Cal.App.2d 253, 256-257 [330 P.2d 888]; see also, DeCelle v. City of Alameda (1960) 186 Cal.App.2d 574, 582 [9 Cal.Rptr. 549].) . . .
“‘Statutes must be given a reasonable and common sense construction in accordance with the apparent purpose and intention of the lawmakers-one that is practical rather thаn technical, and that will lead to a wise policy rather than to mischief or absurdity.’ (45 Cal.Jur.2d 625-626.) ‘[I]n construing a statute the courts may consider the consequences that might flow from a particular interpretation. They will construe the statute with a view to promoting rather than to defeating its general purpose and the policy behind it.’ (Id., p. 631.) . . .” (Anaheim Union Water Co. v. Franchise Tax Bd., supra, 26 Cal.App.3d at p. 105.)
Here, Price points to the language in section 1094.5, subdivision (a), which says that all or part of the record “may be filed with the petition, may be filed with respondent‘s points and authorities or may be ordered to be filed by the court. If the expense of preparing all or any part of the record has been borne by the prevailing party, such expense shall be taxable as costs,” as statutory authority supporting the superior court‘s order directing the Commission to furnish the reporter‘s transcript free of charge.
I conclude, following applications of the above describеd rules of statutory construction, a historical analysis of section 1094.5 and the rules of procedure for administrative review by the courts, that Price‘s construction of section 1094.5 is not well founded and that the language
Prior to 1936 review of all agencies’ adjudications was primarily had by way of writ of certiorari or writ of prohibition. (Bixby v. Pierno (1971) 4 Cal.3d 130, 138 [93 Cal.Rptr. 234, 481 P.2d 242]; Judicial Council of Cal. 10th Biennial Rep., p. 138.) In Standard Oil Co. v. State Board of Equal. (1936) 6 Cal.2d 557 [59 P.2d 119], the court held that certiorari was not available for review of decisions of state-wide agencies which did not possess constitutional judicial authority and Whitten v. California State Board of Optometry (1937) 8 Cal.2d 444 [65 P.2d 1296, 115 A.L.R. 1], foreclosed the use of prohibition in such cases. The need for a procedure of review in the courts was answered by Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75 [87 P.2d 848], which held that review by writ of mandate was available.3
After a brief experience in applying the traditional rules of mandamus for review of adjudications by state-wide agencies without constitutional judicial authority (see Laisne v. Cal. St. Bd. of Optometry (1942) 19 Cal.2d 831 [123 P.2d 457]), rules of procedure peculiar to administrative review for such agencies’ decisions were outlined in Dare v. Bd. of Medical Examiners (1943) 21 Cal.2d 790 [136 P.2d 304].
Dare determined that the respondent should include the record as part of its return to the writ or should have it available at the time of trial. If the petitioner in the mandamus proceeding was forced to prepare the record at his own expense, he could recover the cost if he prevailed in the court proceedings. As Justice Traynor pointed out in his dissent (Dare v. Bd. of Medical Examiners, supra, 21 Cal.2d at p. 804), the similarity between that rule and the procedure employed in certiorari is apparent. (See 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 210, p. 3966.) Code of Civil Procedure section 1071 directs that a “writ of review [certiorari] must command the party to whom it is directed to
Dare further departed from the traditional rules governing mandamus when it announced that the trial de novo referred to in Laisne v. Cal. St. Bd. of Optometry, supra, 19 Cal.2d 831, was trial upon the record of the proceedings before the agency and certain limited additional evidence. That was aptly described by Justice Traynor as “a procedure unknown at common law.” (Dare v. Bd. of Medical Examiners, supra, 21 Cal.2d at p. 805.)
The Legislature in section 1094.5 (enacted in 1945 following the Judicial Council‘s extensive procedural study of state-wide administrative agencies and of the judicial review of agencies’ decisions)4 extended Dare‘s two procedural rules to all adjudications reviewable by administrative mandamus and thereby adopted one rule closely akin to, but not identical with, certiorari, and another rule unknown at common law.5 I conclude that viewed in either light section 1094.5 cannot be interpreted to mean that the agency, here the Commission, must bear the initial costs of preparing the reсord.
Furthermore, if section 1094.5 outlines a procedure unknown at common law, the absence of an express direction as to the payment of the cost of producing the record cannot mean that the Legislature intended that the agency would bear the cost. If such a result were intended, the Legislature would not have also provided in section 1094.5 that the prevailing party may recover the cost of the record.
In addition,
Nor does application of the rules pertaining to traditional mandamus change the result. An action in mandamus is a special proceeding of a civil nature. (Cal. Administrative Mandamus (Cont. Ed. Bar) § 1.5, p. 8.) There is no provision in the statutes applicable to mandamus (
In Fickeisen v. Civil Service Com. (1950) 98 Cal.App.2d 419 [220 P.2d 605], the petitioner a permanent civil service employee assigned to the Department of Public Health was discharged pursuant to an accusation duly filed and heard by the county civil service commission charging him with misappropriation of county property. He filed two separate actions in the superior court to review the proceedings before the commission and to effect his reinstatement-one in certiorari and one in mandate. He appealed from an adverse judgment in the superior court.
The appellate court in Fickeisen said: “We do not find any portion of the reporter‘s transcript covering the oral evidence heard by the commission. Since it was incumbent upon the petitioner-both in mandate and certiorari---to prepare and file in the superior court a transcript of such testimony if he wished to contend that the evidence was insufficient, his failure to do so precludes an attack on the evidence on this appeal. (McPheeters v. Board of Medical Examiners, 74 Cal.App.2d 46 [168 P.2d 65].) And see Dare v. Board of Medical Examiners, 21 Cal.2d 790, 794 [136 P.2d 304].” (Pp. 420-421.) The court, however, accepted as true all petitioner‘s references to and quotations from the transcript to save him unnecessary expense and delay and affirmed the judgment of the superior court.
I agree with the majority opinion that Crespo v. Superior Court (1974) 41 Cal.App.3d 115 [115 Cal.Rptr. 681], relied on by Price is clearly distinguishable. In Crespo the aрpellate court issued a peremptory writ of mandate to compel the superior court to order free transcripts for indigent petitioners, which the trial court had refused to do relying on Rucker v. Superior Court (1930) 104 Cal.App. 683 [286 P. 732].
In Crespo a petition for writ of mandate to compel the Superior Court of Los Angeles County to provide without cost to petitioners a clerk‘s transcript and reporter‘s transcript on appeal from a judgment of the superior court was filed by petitioners (natural parents of two minor children). Pursuant to
The appellate court concluded that the trial court has authority to order transcripts on appeal at county expense for indigent parents in a
The distinctions between Crespo and the instant case are apparent. In Crespo involving termination of a natural parent‘s right to custody and control of two natural children the court acknowledged the general rule against supplying free transcripts for indigents but found it inapplicable in light of the Legislature‘s intent in
Accordingly, I conclude that, in the absence of a statutory provision to the contrary,
I further conclude the superior court does not possess the inherent power to order, absent statutory or case authority, an administrative agency, whose action an indigent civil litigant seeks to have reviewed, to furnish, at public expense, a free reporter‘s transcript for purposes of review.
Here, Price contends that the superior court pursuant to its inherent power to grant in forma pauperis relief also has the inherent power to order relief as to fees for the cost of transcripts by ordering the Commission, from whose order he seeks a review, to supply the transcript free of charge.
In the instant case no authority has been cited for the proposition that there was a common law right to a free reporter‘s transcript in a civil action upon a showing of indigency and research has disclosed none.8
The cases in which a common law right was found to proceed in forma pauperis have dealt with the waiver of various fees (see Ferguson v. Keays (1971) 4 Cal.3d 649 [94 Cal.Rptr. 398, 484 P.2d 70] (filing fee on appeal); Majors v. Superior Court of Alameda Co. (1919) 181 Cal. 270 [184 P. 18, 6 A.L.R. 1274] (jury fees); Roberts v. Superior Court (1968) 264 Cal.App.2d 235 [70 Cal.Rptr. 226] (cost bond)) and not with a direct shift in costs to a civil adversary prior to decision and are therefore inapplicable.
Insofar as a transcript of the Commission‘s proceedings may be required under
All California cases which have considered the ordinary civil litigant‘s right to a free transcript on appeal have denied that such a right exists. (Leslie v. Roe (1974) 41 Cal.App.3d 104 [116 Cal.Rptr. 386]; Agnew v. Contractors Safety Assn. (1963) 216 Cal.App.2d 154 [30 Cal.Rptr. 690]; Legg v. Superior Court (1958) 156 Cal.App.2d 723 [320 P.2d 227];
By reason of the foregoing, I conclude that the superior court does not have the inherent power to order an administrative agency to supply, free of charge, a reporter‘s transcript to an indigent litigant who seeks a review of the agency‘s (here the Commission) order before that court.
Moreover, if the lower court intended in its order that the county, in contrast to the Commission named in the action, should bear the cost of preparing the transcript, no authority giving the superior court the power to disburse such public funds has been cited. In fact, Rucker v. Superior Court, supra, 104 Cal.App. at p. 685, stated: “... There is no lеgal mode of requiring payment therefor [for the reporter‘s transcript] out of the public treasury.” Although Ferguson v. Keays, supra, overruled dicta in Rucker concerning the common law right to appeal in forma pauperis, Ferguson did not in any manner question Rucker‘s determination as to payments from public funds. Indeed in the recent case of Payne v. Superior Court (1976) 17 Cal.3d 908 [132 Cal.Rptr. 405, 553 P.2d 565], the Supreme Court stated that it was for the Legislature to appropriate the funds if the charge for the appointed counsel for an indigent present in a civil action is to be paid from public moneys.
I further conclude that an indigent civil litigant‘s constitutional right to due process and equal protection of the laws is not violated by refusal to supply a free reporter‘s transcript of an administrative agency‘s hearing which he seeks to have judicially reviewed.
Price‘s contention that Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d 28, establishes that he, in requesting a free transcript, is asserting a right of fundamental constitutional dimension is in error.
Strumsky merely determines that there is no justification for the application of one judicial standard of review for decision by state-wide agencies of legislative origin and another standard of review for decisions of local agencies. It holds that if the local agencies’ decision affects the administrative concept of a fundamental and vested right, that decision,
As noted Strumsky dealt only with the nature of a right which would trigger a more intensive test of judicial review. At stake here is not the abstract right to review under a particular evidentiary test. Here, the issue is whether an indigent litigant in an action to review an administrative order of discharge from civil service employment can force an agency (or other governmental body) to bear the costs of producing a record of earlier proceedings. The fact that an administrative decision under review affects a fundamental and vested right under the teaching of Strumsky does not mean that a fortiori a request for a free transcript in an administrative mandamus proceeding touches a fundamental interest for equal protection and due process purposes. I would hold it does not.
In Alex v. County of Los Angeles (1973) 35 Cal.App.3d 994, 1000-1001 [111 Cal.Rptr. 285], this court said:
“Case law has developed a two-level standard in evaluating legislative classifications under the ‘equal protection’ clause. The traditional test is that there is a presumption of constitutionality which will not be overthrown by the courts unless it is palpably arbitrary and beyond rational and reasonable doubt erroneous and no set of facts reasonably can be conceived that would sustain it. This traditional test is usually applied to ‘economic’ regulations.
“The other, and stricter, standard is employed in cases involving ‘suspect classifications’ or ‘fundamental interests.’ Here the courts take a close look at the classification and require not only a compelling state interest which justifies the law, but also that the distinctions drawn by the law are necessary to further its purpose. (In re Antazo, 3 Cal.3d 100 [89 Cal.Rptr. 255, 473 P.2d 999]; California State Employees’ Assn. v. Flournoy, 32 Cal.App.3d 219 [108 Cal.Rptr. 251].)” (Original italics.)
Here, Price is treated no differently from any other indigent civil litigant who must bear the cost of presenting evidence in the trial court and the cost of a transcript on appeal if review of a decision by an inferior tribunal is sought. No possible loss of liberty is at stake here in contrast to the situation in Griffin v. Illinois (1956) 351 U.S. 12 [100 L.Ed. 891, 76 S.Ct. 585, 55 A.L.R.2d 1055] (appeal of felony conviction); Gardner v. California (1969) 393 U.S. 367 [21 L.Ed.2d 601, 89 S.Ct. 580] (habeas corpus); and Williams v. Oklahoma City (1969) 395 U.S. 458 [23 L.Ed.2d 440, 89 S.Ct. 1818] (misdemeanor conviction).
The interest here as in Ortwein v. Schwab (1973) 410 U.S. 656 [35 L.Ed.2d 572, 93 S.Ct. 1172], “is in the area of economics and social welfare.’ [Citations.] No suspect classification, such as race, nationality, or alienage, is present. [Citation.] The applicable standard is that of rational justification. [Citation.]” (P. 660 [35 L.Ed.2d p. 576].)
I also conclude that the due process clause is not violated by the denial of a free transcript. Price has been accorded a right to be heard in
Finally, I address the practical as opposed to the technical aspect of the case at bench.
Appellate courts must give statutes “reasonable and common sense construction” in accordance with the “apparent purpose and intention of the lawmakers” in a manner “practical rather than technical, and that will lead to a wise policy rather than to mischief or absurdity” and consider “the consequences that flow from a particular interpretation.” (Anaheim Union Water Co. v. Franchise Tax Bd., supra, 26 Cal.App.3d 95, 105.)
In my opinion the apparent legislаtive purpose of requiring, even in administrative mandamus proceedings, that a party requesting a transcript pay the cost is based on the fact that if the costs of preparing such transcripts were thrust upon the courts it would drastically and unrealistically increase the cost of judicial administration to the taxpayers.
The shifting of costs of reporter‘s transcripts to the public agency where indigent litigants seek judicial review, as present in the instant case, would drastically increase the public‘s total cost of judicial administration since a public agency must recover its costs from the taxpayers.10
The Legislature never contemplated or intended such a result in the indigency situation in formulating the legislative scheme for allocation of
In summary, here Price was discharged from his civil service employment as a tram operator with the probation department.11 He was afforded a hearing which resulted in a recommendation of reinstatement following which the Commission, adopting substantially all the findings of the hearing officer, sustained the order of discharge. Price then “appealed” to the superior court. The superior court declared Price an indigent and ordered the Commission to supply a $600 reporter‘s transcript of the hearing to Price, free of charge, for use in his “appeal.”
(See Trumpets in the Corridors of Bureaucracy: A Coming Right to Appointed Counsel in Administrative Adjudicative Proceedings, 18 UCLA L. Rev. 758, 786.)
The magnitude of costs of reporter‘s transcripts is apparent when considering that it has been estimated that nationally reporter‘s fеes total $250 million or more annually. (Hyatt, Trying Days in Court-Shorthand Reporters Fear Use of Computers To Speed Their Work Will Cut Status, Income. Wall Street Journal (Sept. 22, 1976) p. 36.)
Here the cost of the transcript is $600 but for illustration purposes only, as to the magnitude of reporter transcription fees and costs and for no other purpose, I take judicial notice of the public file in the case of Graves v. Commission on Professional Competence, 2d Civil No. 47774 (Super. Ct. No. C 99895) in which an indigent litigant appealed from an order of the superior court denying a free transcript on appeal which cost between $15,000 to $20,000 for 23 days of testimony. (Reversed on other grounds in an unpublished opinion filed Oct. 20, 1976.)
In either instance the superior court could only reasonably contemplate and assume that the cost of the reporter‘s transcript must necessarily be paid for by the taxpayers since the costs would be theoretically and presumably unrecoverable from Price, a declared indigent. Such an order, therefore, in either instance, ignores the legislative scheme for allocation of costs and results in the expenditure of public funds for reporter‘s transcripts to assist in the appeal of a civil matter involving personal economic interests which is not sanctioned by law.
Accordingly, I would hold the superior court‘s order granting Price‘s motion for a free transcript constitutes an abuse of discretion. Mandate is an appropriate remedy to control an abuse of discretion by the superior court. (Terzian v. Superior Court (1970) 10 Cal.App.3d 286 [88 Cal.Rptr. 806].)
I would let a peremptory writ of mandate issue, not on the very narrow ground in the majority opinion (found in the record but not argued in the briefs) but on the determinative issue (as argued in the briefs). I would order the superior court to vacate its order of April 22, 1976, granting Price‘s motion for an order providing a free reporter‘s transcript on appeal and thereafter to enter a new and different order denying the motion.
A petition for a rehearing was denied December 3, 1976. Hanson, J., was of the opinion that the petition should be granted. The petition of the real party in interest for a hearing by the Supreme Court was denied January 19, 1977.
Notes
“(a) Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board or officer may be filed with the petition, may be filed with respondent‘s points and authorities or may be ordered to be filed by the court. If the expense of preparing all or any part of the record has been borne by the prevailing party, such expense shall be taxable as costs. [Italics addеd.]
“(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.
“(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence; and in all other cases abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.
“(d) Where the court finds that there is relеvant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (e) of this section remanding the case to be reconsidered in the light of such evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit such evidence at the hearing on the writ without remanding the case.”
The plain fact remains that neither Dare, the Judicial Council nor the Legislature considered who should bear the initial costs of preparing the record when review of local agencies’ аdjudications was sought. The silence on the part of the Judicial Council and the Legislature can at most mean that as to local agencies the traditional rules of mandamus apply as in the absence of a contrary provision in section 1094.5.
Lee then proceeded to hold that under 11 District of Columbia Code section 935 and 28 United States Code section 753 “... the United States must pay for transcripts for indigent litigants allowed to appeal in forma pauperis to the District of Columbia Court of Appeals if the trial judge or a judge of the DCCA certifies that the appeal raises a substantial question the resolution of which requires a transcript....” (P. 904.)
Thus, in view of Lee‘s express refusal to base its decision upon constitutional grounds, we find it persuasive authority only for the proposition that the California Legislature may by statute provide indigents with free reporter‘s transcripts. As previously discussed the California Legislature has not to date seen fit to enact such a statute.
“Dear Mr. Price:
“You are hereby notified that at the end of the business day, Thursday, December 5, 1974, you are discharged from your position of Tram Operator and from County service.
“The following constitutes grounds for your discharge:
“On November 4, 1974, you were arrested by officers of the Compton Police Department for violation of Section 217 of the California Penal Code, Assault With Intent to Commit Murder. In this incident it is alleged that you shot your wife, Mrs. Doretha Price, inflicting a two-inch scalp wound. Such behavior is incompatible with your position as a Tram Operator and with your position as a Probation Department employee.
“As a Tram Operator in a juvenile institution, you are in constant contact with juvenile court wards who are sometimes assаultive and abusive to staff members. The Department is charged with the protection of those wards placed in its care and therefore, any possible threat to their safety must be carefully controlled.
“By your behavior, you have demonstrated the capacity to act out in a violent and dangerous manner. It is, therefore, necessary to discharge you to forego any possibility of injury to court wards with whom you may have contact.
“Civil Service Commission Rules give you the right, as a permanent employee, to appeal this action and request a hearing before the Commission. Your letter should contain a general denial of the assertions or facts. Written responses and requests for a hearing must be sent within ten (10) business days of service of this notice to the Civil Service Commission, 222 North Grand Avenue, Los Angeles, California 90012. A copy should also be sent to Philip Stein, Personnel Officer, Probation Department.”