*1 [L.A. No. 30009. In Bank. Mar. 1974.] STRUMSKY,
COREEN Plaintiff and Appellant, SAN DIEGO ASSOCIATION, COUNTY EMPLOYEES RETIREMENT Defendant Respondent.
Counsel L., & Meloche for Plain- Linley, Donald Murphy Meloche McDougal, tiff Appellant. Counsel, Kase, Jr., G.
Robert Berrey, County Joseph Deputy County Counsel, for Defendant and Respondent. D. (Los
John Counsel Edward H. County Gaylord Maharg, Angeles), Weekes, Counsel, Martin E. as Amici Curiae on behalf of Deputy County Defendant and Respondent.
Opinion we the instant case confront SULLIVAN, J. In concerning determinations of administrative agencies of review adjudicatory judicial Bixby v. Pierno to reach in called which we were not upon whose 481 P.2d That presence question, 242]. Cal.Rptr. When, 2) is this: (id. us in at fn. Bixby noted by was expressly or decision to review of an administrative order pursuant judicial Procedure, has of the Code of Civil it is claimed there been section 1094.5 abuse of discretion in that the are not by findings supported prejudicial evidence, what the of when the the is review proper scope respondent is a local or a state of local agency agency agency jurisdiction?
If has remained clear in the checkered anything history consistently 1094.5, the review of administrative under section it decisions judicial has been the answer the (c) Subdivision foregoing question. made, that when a claim of is abuse provides findings unsupported (which
of discretion
(b)
under subdivision
is established if the findings
are not
evidence)
the
by
shown in cases in which
court
supported
by
independent judgment
law to exercise its
on the evidence
authorized
if
court
weight
determines that the
are not
findings
by
supported
the.
evidence;
in all other cases abuse of discretion is established if the
court determines that the
are not
findings
substantial evi-
supported
light
dence
the whole record. It has been veritable
at least
gospel,
since the decision of this court
Equal.
in Standard Oil Co. v. State Board of
(1936)
or decisions of local or agencies state of local agencies jurisdiction court is not authorized law to exercise its on independent judgment evidence, and therefore that with review proper scope respect to such orders decisions is that of substantial evidence light whole record. It is this axiom which is here challenged today. we concluded solemn and extended consideration have
After that there no exists rational or legal distinguish longer justification between, hand, on the one local agencies review ing regard judicial and, other, and state of local on state agencies jurisdiction agencies we statewide hold legislative origin having jurisdiction. Accordingly, rule review orders or applicable adjudicatory decisions of the latter class of was reaffirmed and agencies—which us in also orders or Bixby—is explained by adjudicatory applicable decisions of in the class. That rule is as follows: If the former order or decision of the affects a fundamental vested agency substantially court, the trial under section 1094.5 whether there right, determining are not has been an abuse of discretion because findings supported evidence, on the evidence must exercise its judgment are not and find an abuse of discretion if supported If, hand, or decision does on the other the order the evidence. weight *5 vested the trial court’s affect a fundamental substantially right, a of whether or not the will be limited to determination inquiry record. evidence in the of the whole substantial light supported below, As we we have concluded that the order and decision explain in the instant case does affect a fundamental vested right; accordingly standard stated above is here Be- independent-judgment applicable. cause the trial court in the writ considered denying itself bound exist- law to ing review, substantial-evidence standard of we apply reverse and remand the cause for a judgment new determination under the rule we announce today.
I Plaintiff Coreen from a Strumsky appeals judgment her denying peti- tion a for writ of mandate to review and set sought aside the decision of the Board of Retirement (Board)' of defendant San Diego Em- County ployees Retirement Association her certain denying death benefits.
Plaintiff is the widow of Richard D. who Strumsky, died in 1968 follow- the time of aorta. At of the narrowing a to correct congenital ing surgery Marshal’s the San Diego County sergeant was Strumsky his death Mr. branch; had been El he employed of its Cajon was in charge office and member” “safety had been for many years years county Retire- Code, County (see 31469.3) Diego San Employees Gov. § ment Association. Retirement Law of the County to the Employees
Pursuant Code, to the (Gov. et made application seq.), plaintiff established Board for the service-connected death allowance Code. That section in substance Government provides dies as the as here relevant that the a member who surviving spouse result of an out of and in the course his em- arising disease injury elect, lieu estab- entitled of the normal death allowance ployment 31781.1,1 lished by section a lifetime allowance half the amounting member’s at death. the case Mrs. salary Strumsky, In service-con- nected death allowance would be almost three times the nonservice-con- nected death allowance of $181.03 month. per
The Board held on the hearing service-connection. Five testified, witnesses evidence, documentary including written reports doctors, four was introduced. The evidence established clearly that had decedent suffered from since due to a hypertension boyhood congenital aorta; narrowing of the that this condition was aggravated by progressive arteriosclerosis which had become advanced at a one year point prior death; his and that the unsuccessful was surgery undertaken order to correct the aortal or coarctation narrowing and thus relieve severe it hypertension which and the arteriosclerosis had combined to about. bring was, however, There considerable conflict in the evidence concerning *6 extent to which the stress and tension inherent in decedent’s occupation and his personal attitude toward his affected the job of the development arteriosclerosis. On this point evidence an ranged widely from opinion that the stress and tension of decedent’s was employment only responsible to “an condition, infinitesimal extent” his for to an that the arterio- opinion sclerosis may have been substantially related to chronic tension. theory the latter supporting view was that the caused decedent’s hypertension by condition was exacerbated congenital by supplemented occupational nonservice-connected) Generally (i.e., speaking, death allowance normal equal provided by percent for of the is section 31781.1 Government Code retired retirement allowance the decedent have received had he or would disability been retired for on nonservice-connected the date death.
tensions and that the caused heightened this combination hypertension by about arteriosclerotic condition. brought
The Board a vote of four to three by denied Mrs. Strumsky’s application service-connected death allowance. Her for a was request rehearing denied, and she review of the decision thereupon sought by administrative (Code Proc., 1094.5.) mandate. Civ. writ, The trial court denied that “the Board are finding respondent substantial supported by evidence in the of the whole record.” The light court also made the fol- Court, of fact: lowing “7. That the if supplemental finding this were a case in which the Court was authorized law to exercise its by independent evidence, on the judgment would find that the death of the decedent safety member Richard D. was service-connected Strumsky in nature.”
The court thus concluded that there was no abuse of dis- prejudicial cretion committed the Board and that the alternative writ of mandate theretofore issued should be and the for the discharged petition writ denied. was entered peremptory This Judgment accordingly. appeal followed.
II Pierno, In Bixby v. supra, at 144-147, we pages explained the considerations which counsel in favor of fuller review in cases judicial vested, involving fundamental rights. The essence to be distilled is this: When an administrative decision affects a which has right been legiti mately “vested,” is acquired otherwise and when that is of a right fundamental nature from the of its economic or its standpoint aspect “effect ... in human terms and the ... to the individual importance situation,” in the life then a full and review of that decision is indicated because of the abrogation “[t]he too right important to the individual to it relegate to exclusive (Id. administrative extinction.” at course,
This force to all adminis reasoning, applies equal trative of an nature—regardless decisions administra- adjudicatory2 distinguished of an adjudicatory agency 2To determinations administrative from agency legislative capacity. Review are actions undertaken such an its means respect of section 1094.5 of the Code of Procedure is not available with Civil (Code kind, sought ordinary of this and when means mandate acts review *7 “ 1085) Proc., ‘judicial proceedings examination of the § Civ. review is limited to an arbitrary, [agency] capri whether action has been before cious, determine [its] lacking entirely evidentiary support, or whether has failed to follow [it] ” (Pitts (1962) give required by law.’ v. Perluss 58 procedure and the notices 824, 19, Superior 83], v. Cal.Rptr. quoting from Brock 833 377 P.2d Cal.2d [27 283]; (1952) generally Adminis- Cal.App.2d see Cal. Court 109 605 P.2d [241
35 however, the case It has been held involved. inapplicable, tive agency is categories of these two The first of which fall into categories. agencies been granted which have of of constitutional origin agencies comprised Boren (See, for limited itself. example, Constitution judicial power v. 981]; Covert 634 P.2d (1951) State Personnel Board [234 545]; Ishi Equalization State Board P.2d Cal.2d 125 (1946) 29 [173 of Regents 854 matsu v. 266 University (1968) Cal.App.2d of of California (1957) Bd. Horse etc. Springs T. Club v. Cal. 756]; Palm Cal.Rptr. [72 County 713]; Dairy v. cf. Alta-Dena P.2d 242 155 Cal.App.2d [317 *3In the second 510].)* 66 Diego (1969) Cal.Rptr. [76 San case, in the instant with which we are concerned are the agencies category wit, both local agencies “local includes agencies”—which purely (See, an of limited territorial jurisdiction. example state agencies Kings (1956) Cal.2d latter, Ry. Atchison etc. Co. v. Co. Water Dist. a 1].) It is established that when review of decision an 140 [302 either of these two sought within agency falling categories pursuant Procedure, of the Cbde of Civil the court’s scrutiny section 1094.5 factual is limited to a whether those determination agency’s findings substantial evidence in of the whole record supported light whether or —and this is so not the a funda decision of the affects agency mental vested right. relates to so-called distinction insofar as it of the indicated
The roots ultimate source in one be traced to their can agencies” “constitutional doctrines, that of separation of our most fundamental doctrine, has of the Constitution of been part That powers. HI, section 3 as in article since its expressed
state inception, presently executive, and are legislative, “The of state government follows: not exercise Persons with the exercise one charged may judicial. except permitted by (Italics of the others this Constitution.” either (Cont.Ed.Bar Manjares 1966) 2.9, 18-19, trative v. Newton pp. § Mandamus cf. Comment, Quasi- (1966) 901], Cal.Rptr. 411 P.2d [49 Legislative Agencies: (1972) Acts Local Administrative Judicial 7 U.S. Review legislative Generally speaking, F.L.Rev. action is the formulation cases, applied rule to be all future the actual adjudicatory while -an act involves (See application specific existing of such a rule to a v. Board set of facts. Wulzen Supervisors (1894) 353]; 101 Cal. 68 Cal. P. Smith v. Strother 852].) P. category has been of this as members 3Although of certain the state pending unclear established, others remains clearly of certain the status Mandamus, supra, (See generally Cal. Administrative question. determination of that work; Kleps, 5.68, 77-80, A see also of the same pp. Appendix Certiorarified Decisions—1949- Administrative Reviewed: The Courts Mandamus California 554, 562-565.) 12 Stan.L.Rev. *8 36
added.)4 the the exercise It is italicized which forms basis for proviso of so-called “constitutional insofar as judicial agencies”; specific powers di- to the individual relating agencies them, vest so favored can rectly judicial power perform functions to the extent judicial grant of without doctrine offending of of Covert v. (See Equalization, supra, State Board separation powers. 125, 132; Mandamus, supra, 29 see Cal. also Administrative 1.3, 5, Thus, 5.67, 76.) even a vested fundamental pp. though right §§ involved, be the determination of the factual on issues is entitled agency to all the deference and due judicial decision.5 respect
With to “local the matter is otherwise. This is so respect agencies” for reason that the clause is simple separation powers inapplicable (People 520.) below the state government (1868) level. v. Provines 34 Cal. that clause does Accordingly prevent exercise judicial powers “local (Imperial (1912) Water Co. v. agencies.” Supervisors 162 Cal. 14, 780]; 17-18 (1910) 416, P. v. Koster Nicholl 157 Cal. [120 422-423 302]; Holley P. Orange 420, v. County (1895) [108 Cal. 424 [39 790]; P. v. 25-26; Supervisors, supra, Board Wulzen Cal. Savage v. (1953) Sox 80]; 485-487 Peo This, (1931) P. how ple 84].) Strong Cal.App. ever, matter; is not end of the fact that the state agencies below level prevented are not from exercising judicial by the powers separation- of-powers doctrine in no way may in and of itself implies that exercise they such bodies, Because powers.6 local like governmental entities on the level, state Constitution, ultimately derive all their from the state powers it is in that document that we must seek the basis for exercise judicial power by If found, bodies.7 no such basis be it matters not quoted 4The adopted section was Substantially in 1972. language identical has appeared the Constitution since 1849. 5The validity of foregoing rationale exercise of agencies” “constitutional question. is not here in 6We note appears what contrary point among opinion on this certain (See Kleps, commentators. Mandamus: Court Review Certiorarified of California 23; 285, 291, Administrative Decisions 1939-1949 Kleps, fn. Stan.L.Rev. Mandamus Reviewed: The Courts and Administrative De Certiorarified cisions—1949-1959, California supra, 561-562; 12 Stan.L.Rev. Cal. Administrative Man damus, supra, 5.65, interpretation To the extent our of these comments (i.e., they is accurate to the extent that indicate that the inapplicability separa tion-of-powers clause in and of itself constitutes an authorization for exercise boards), judicial powers by disagree local we with them. 7Although local bodies it has been maintained that under 1849 Constitution (see Municipal self-government possessed powers” Peppin, certain “inherent 1), there Rule in I since Home is no doubt Cal.L.Rev. California:
37 fettered bodies are not separa- that local for at all purposes present been con- which have the exercise of clause in powers tion-of-powers them. ferred upon supra, Equal., Co. v. State Board case of Standard Oil
In the landmark 557, of judicial we basis for the exercise 6 Cal.2d one suggested possible decision, which led of that The holding local agencies. primary decisional law much our and statutory to the present development decisions, was that of administrative legis- review respect under the Con- created of statewide could not latively agencies jurisdiction that therefore the decisions of such stitution exercise judicial powers, were not was based reviewable certiorari. This holding upon VI, 1, Constitution, article of the which at that time as provided Senate, follows: “The shall be vested in the State judicial power of Court, as court of sitting in a district courts of impeachment, Supreme courts, such appeal, courts as be established in superior may municipal or any city city Legislature may and such courts as the county, inferior town, establish any incorporated city township, county city or “ county.” (Italics held, cases, added.) ‘Except We from earlier quoting purposes local the section of the whole of the disposes judicial power state and vests all of therein, it in the courts named none expressly leaving ” at the disposition (Italics of the added.) (6 561.) Legislature.’ Cal.2d at p. Thus, we concluded, could not Legislature vest judicial powers agencies of statewide jurisdiction. however,
It was the italicized which in later cases was seized exception, (See as the basis for a different rule with to “local agencies.” respect upon City 14, Nider v. (1939) Commission 36 28 especially Cal.App.2d [97 Fascination, 293]; 260, P.2d see also Inc. v. (1952) Hoover 39 Cal.2d 656]; 264-265 Department P.2d La Prade v. Water & Power [246 47, (1945) 13]; City 53 P.2d Walker v. San Gabriel (1942) 1383]; P.2d 142 A.L.R. Corcoran adoption place of the 1879 Constitution that notion has had no in the law of (See Bridge (1931) this state. Golden Gate etc. Dist. v. Felt 320 [5 Cal. 585].) California, states, majority rule in and in the of other vast leading government followp: stated commentator in the field of local constitution, granted by certainly “Unless municipal corporation the state [and body] local right self-government other has no inherent The reason .... general municipal corporation rule is is a creature based which, limits, from within it derives all of its legislature, rights added, omitted.) (Italics McQuillin, (2 fn. powers.” Municipal Corporations 4.82, 144-145; Bain, (1966 ed.) 3d rev. see The Doctrine an Inherent also Mc pp. Right Local 190 & Colum.L.Rev. Self-Government System S. F. etc. Retirement *10 rationale, VI, 59].) P.2d The was article generally speaking,
[251 1, of section while exercise judicial by legislatively forbidding powers permitted created of the Legislature statewide to agencies jurisdiction, vest such as such “inferior courts” it establish on the local powers might level—and that “local be to be agencies” could considered such “inferior Constitution, courts.” XI Article of the which we to examine in proceed infra, some detail allowed the to clearly Legislature establish powers of local bodies as counties and cities approve powers delineated in city county reasoned, charters. These it was powers, include might to the purely judicial powers of article VI. pursuant grant In VI, courts, of effecting reorganization the inferior article section of the was Constitution and the therein language upon amended which the relied foregoing was cases removed.8
It is the effect of this amendment which is our concern today. primary For the however, it is present, sufficient to observe that the deletion wrought amendment rendered the no section available as basis for longer the exercise of judicial by “local powers agencies.” to the article VI, amendment of the case of decided prior
Although
Service Commission
Civil
Dierssen v.
Cal.App.2d
513],
birth to a rationale which has been relied
since the
gave
P.2d
upon
review
limited
factual
of
judicial
amendment
support
Drummey v.
Two
earlier in
State Bd.
Funeral
years
“local agencies.”
848],
court,
(1939)
Twelve after of two new mem Court of (although the same District Appeal composed decision as the bers) the rationale of its earlier Dierssen primary adopted Sox, v. Cal. in standards of review supra, Savage support differing that the effect of the It was there contended App.2d 80]. from the distinction amendment was to all constitutional remove support contention, from court, The extensively in rejecting quoted question. It the voters at Dierssen. also made reference to the before arguments the time of the amendment and conluded that “the voters in reducing to, number of inferior courts nor did in way never intended they, interfere with the and counties and cities rights granted municipalities, (118 counties in the other at Constitution.” portions 488.) p.
We at the outset our that the of Dierssen express reasoning suspicion was ato grounded large extent grammatical misunderstanding Drummey. of this language court in The sentence from latter case which we ante) have above text (see fn. con- quoted accompanying Oil, cerned with of Standard restating “theory” “theory” being in full effect at the Drummey. time of In the course of such restatement VI, we indeed indicated that the article the entire then section “vest[ed] undergone 9Article XI reorganization has substantial amendment since Dierssen, but the provisions upon which the court relied remain in substance. boards, state in the local except courts* commissions, railroad industrial accident which governed by (13 us, constitutional special at It is provisions.” clear however, that final clause eight words this statement refers only to the seven words next it immediately and not to the preceding phrase “local boards.” concerning The only constitutional “special provision” which Standard Oil had related to VI, local boards was article section 1 itself, a which, above, as indicated was (11 amended years after Drummey) to remove the Oil support Standard had found in it. Thus it is our opinion the Dierssen court was misled at the outset its undertaking search for other constitutional all the support; support at that necessary time was VI, article provided by section 1. Savage Sox, supra. we come matter otherwise when theBy VI,
time of that decision article section 1 had indeed been amended it, new was if the distinc- justification necessary constitutional replace court, tion in Savage standards of review was to be maintained. The Dierssen, likewise which had adopting adopted supports *12 been needlessly “discovered” 12 before: the home-rule years article XI. These it duly installed as “new” the constitutional source of in “local judicial power agencies.” Savage is fundamental: it fails to the decision
The error in appreciate XI, VI and in so it doing article and article the between relationship of the amendment the effect totally misapprehends comprehensive and alone. It the Article XI does not cannot stand on former article. and with the bestow to authority invests the to Legislature upon, powers for, below state This is set bodies the level. govemmentál up procedures (i.e., cities counties noncharter) carried out for so-called law and general in re- direct of statutes found the Government Code. by legislation With to and charter cities counties and spect powers pre- procedures scribed means of of the charter legislative approval disapproval case, however, the each the to In Legislature. presented Legislature and of the limited in the nature extent which it may With powers grant. to the is one of legislative respect powers, question delegation proper vested in the itself Legislature article IV of Constitution.10 powers With executive is one of conflict respect powers, question avoiding with the executive reserved to powers members the executive branch in V. With to judicial article is one respect powers, compli- provides: legislative power 1 of “The 10Section article IV State vested Legislature Assembly, in California which consists of the Senate but and people powers reserve themselves of initiative and referendum.” now which we matter VI—a article limitations imposed anee in detail. to examine some proceed above, article VI permitted to 1950 we have indicated prior
As thus to and level on the local courts” to establish “inferior Legislature this grant exercised The Legislature to that extent. vest judicial powers at the municipal of local courts establishing directly by plethora courts, courts, of the police level, peace including justice township township addition, courts, In according courts. city of the city peace justice it exercised Oil and its in Standard progeny, the interpretation adopted in “local agencies.” by vesting judicial grant powers remains) conduit (and XI of the Constitution was today Article whatever which the vested in “local agencies” powers through Legislature not, it was was and is as the Dierssen entitled vest in them. It assumed, Savage it was courts an source of power—rather takes the and is the instrument which the through Legislature them it is entitled to bestow and in bestows constitutionally turn at least in on units below the state level. part governmental mind, focus our the effect of the
With we foregoing inquiry upon with, the court 1950 amendment to article VI. To we believe’that begin Sox, Savage supra, concluded that the result amend- correctly was ment to withdraw from the to create part Legislature authority and bestow inferior courts at the local It is level.11 powers upon clear that in effect the amendment not the further creation only precluded of such courts but also for the elimination of those provided gradual already *13 in a established12—resulting concentration of in constitu- judicial power tionally However, Savage designated courts. the court declined expressly to recognize that the amendment had a fuller and more comprehensive short, effect—in that it had the effect of from the withdrawing Legislature the to ability vest any in judicial body and of in the power concentrating court system all judicial not power bestowed elsewhere the expressly Constitution.13 result, This Savage concluded, the court was not intended argument pamphlet against clearly set forth in the voters’ 11The the amendment Legislature area at issue. power the of the in this was indicates VI, part question a of the amendment in 12Former section of article which was 1966—having purpose—treated aspect served its this of the repealed but was in measure. judicial power all in the purported to concentrate 13By its terms the amendment however, This, provisions create a with constitutional which would conflict courts. might (see agencies” fns. judicial on certain expressly powers bestow “constitutional text), interpreting we avoid accompanying possible conflict which and 5 and as indicated. effect of amendment exerted in case amendment. “The power purely municipal affair the number of inferior courts never in and voters in reducing to, did mu way tended nor interfere with they, rights granted counties and cities and counties in the other of the nicipalities, portions Constitution. The elimination of of the to Legislature power provide other inferior courts [original than and courts justice municipal italics] city still the constitutional under which the charter left county lawfully quasi-judicial[14] powers and could on boards or confer dealing strictly added.) municipal (Italics (118 commissions affairs.” at p. we Savage As have we believe that the suggested, analysis court from a suffers failure to between articles VI apprehend relationship- ofXI the Constitution and a mistaken conclusion that the latter article constitutes an source of constitutional authority legislative vesting judicial in “local power On the have agencies.” contrary we concluded that article VI all dis- judicial disposes expressly posed Constitution, of elsewhere that, in the its amendment following it no longer authorized the in its Legislature, granting powers to various XI, local bodies to judicial article pursuant to grant powers. short, In although the Legislature retains the authority grant a multi- tude of powers XI, local bodies to article judicial of a pursuant powers are nature no at longer its Moreover we believe that disposal.15 the amend- 14We have opinion in this “quasi-judicial”—an avoided use the term ad jective used in some opinions and by some commentators to indicate the peculiar adjudicatory powers possessed by indicated, agencies. administrative weAs have judicial here powers is the extent true can be vested in agencies.” “local that all “The mere qualifying ‘quasi’ implicit retreat to the with confession recognized down, ‘quasi’ classifications have broken is a smooth cover might which we draw over our as we counterpane confusion use a to conceal a (Jackson, disordered bed.” J. in Fed. Trade Comm’n v. Ruberoid Co. 1081, 1094-1095, 800].) U.S. L.Ed. 72 S.Ct. note passing Legislature, 15We that the least in apparently at was that, courts,” powers view lacked the even with under its then article VI to create “inferior it agencies.” ability year bestow on “local In that Optometry (1942) of Laisne v. Cal. St. case Bd. 457] *14 Oil, decided; case, along progeny had been that with the other of Standard had uncertainty upheaval concerning proper created and role the of the courts vis-a-vis legislatively agencies. Legislature, recognizing created The area, vote) passed (by amendment serve to settle the law would in the a two-thirds presented Propo Senate Constitutional Amendment 8 and sition 16 place court review of all factual cluding it to the electorate as sought on the Generally speaking, November 1942 ballot. the to measure judicial truly limiting powers agencies,” in both “local statewide and Apparently to a evidence con substantial basis. spite in the Standard Oil neither of line of cases and Dierssen case that the this, provided article VI nor XI support article sufficient constitutional for the formerly had the effect of withdrawing judicial powers ment to article VI amendment, the entire XI to the to article leaving prior pursuant granted and some “constitu- the state court concentrated in system power judicial tional agencies.”16
Legislature to through following amendment proposed, the proposition, the above adopted or shall any city county, the latter article: adopt by which has city “When or and Constitution, provide provided a charter in or shall pursuance of this has charter, thereof, ordinance, by any by that decisions of amendment or officer, board, by agency respect fact or in any of made commission administrative final, power have to set municipal to affairs be court of this State shall shall no finding support Nothing in aside fact to it. of if there is substantial evidence county, city, city and limiting any be or section shall construed as local, police, county sanitary within its limits under this Constitution to make and enforce law, and, general provide to regulations and other with when in conflict officer, any by questions by ordinance that of fact administrative decisions of made Constitution, board, agency (Proposed commission or Amendments to shall be final.” 3, 1942; Election, Laws; Tuesday, Nov. Part Propositions II—appendix, Legislature Proposed and General 23.) p. language by the approval We must conclude from the of this immediately and its almost presentation to the electorate after decision, Legislature unpersuaded by Dierssen Dierssen was court’s (and now) discovery grant powers article XI. in the then electorate, argument against apparently persuaded by pamphlet (to proposition from the power away the effect proposition that the would shift too much existing against unjust arbitrary and protections courts thus remove action) rejected (Statement margin. administrative measure a three to one Vote; Election, General Nov. 16Lest it be considered that oversimplified we have the thrust meaning article referring XI in to it aas mere granting conduit for the having their source, if any, Constitution, elsewhere in the we here undertake to review the article, giving of that special attention to provisions relied provisions^ Savage. the court in Section of the article deals government with the formation and provides counties and as here Legislature relevant that the prescribe shall pro formation, consolidation, cedures for boundary change, additionally and shall “provide lature county powers.” cities, for dealing Section provides Legis with that the prescribe “shall procedure city uniform provide for formation city for powers.” general Section 3 deals in procedure with the adopting county and charters, city including necessity approval of their Legislature. Section concerns mandatory charters, which are county it also in all of which remain subject legislative 3; to approval under provides section that “Charter counties shall have all the powers provided by that are this Constitution or statute for counties.” predecessor Section heavily section of upon by which was relied court, Savage (a) deals with permissible city provisions. charter Subdivision provides: competent “It shall be city provide city charter to that the governed may thereunder regulations make and all enforce ordinances and affairs, respect subject municipal only to provided to restrictions and limitations charters[,] subject their several general respect they and in other matters shall City laws. adopted pursuant supersede charters shall this Constitution charter, any existing respect municipal supersede affairs shall all laws Savage language perceived inconsistent therewith.” The Dierssen and courts in this grant allowing quasi judicial power direct constitutional charter cities to “confer on *15 of
The effect this conclusion the us immediately before is clear. Because no be exercised “local judicial powers may longer by the agencies,” factual of those are to no findings agencies entitled greater deference than those other of agencies under the lacking judicial powers Constitution. we that the Accordingly conclude rule of review which was Tierno, reaffirmed us by Bixby in supra, for to adjudicatory application decisions by created of legislatively statewide is jurisdiction equally to by decisions “local applicable agencies” well. cases,
We therefore hold that in all such if the or decision of the order court, a agency affects vested the in de- substantially fundamental right, under section 1094.5 of Code of termining the Civil Procedure whether there has been an of abuse discretion because the are not findings sup- evidence, the ported by must exercise its on the judgment and evidence find an abuse of if discretion are not supported If, of by weight hand, the evidence. on the other order or decision does not affect a substantially fundamental vested the trial court’s right, boards or dealing strictly (Dierssen commissions municipal . with affairs . .” at . p. original italics; Savage 487.) p. at reading language of Our is otherwise. presume We that the provision’s significant use of the term “enforce” considered was by courts, those but we do find in that term that it indication includes adjudicate. power to Attorney General has as his duty “to see that the of (Cal. Const., laws the State uniformly adequately art. enforced" V, 13), but no one would adjudication maintain that a of is therein con tained. Such equally conclusion is unwarranted here.* (b) 5 presently Subdivision of section provides: competent “It be all shall in city provide, by charters in addition to those allowable this Constitu- tion, (1) constitution, the laws regulation, govern- of the State for: (2) city subgovernment (3) police part ment force city in all or conduct city granted, subject only elections and plenary authority hereby article, thereto, restrictions provide therein or amendment the manner which, which, which, the method at and the which the times terms for several municipal elected or number of compensation, city officers and employees compensation paid whose shall appointed, removal, their compensation, and for and for their and for have, deputies, employees and other that each shall and for clerks qualifications, method of and removal appointment, tenure of office added.) (Italics say we deputies, employees.” clerks it to and other Suffice by a language do not construe italicized charter to authorize the establishment VI, which, city in itself since the 1950 amendment to article exclusively have been vested the state courts. city may and enforce within county 7 of “A or make provides: article XI Section local, regulations not sanitary, police, and other ordinances and its limits all ” added.) (Italics laws. general conflict * orders, observance, laws, operation, requiring protection “Enforce or refers contracts, government agreements by authority, that of a whole often or (Webster’s legal its executive branches. . . .” Third New Dict. Internat. *16 the or not of whether a determination will be limited inquiry So the whole record. evidence substantial light supported rule shall that this we will be no that there misunderstanding, emphasize all in trial courts and future to all proceedings pending apply future appeals. pending
Ill this case of the Board in that the decision We concluded have wit, right right, vested plaintiff’s affected fundamental substantially allowance. death to receive service-connected the nature benefit rights that retirement been established
It has long Angeles County (1957) Los (See are vested. Pearson here involved 624]; City Fresno Wallace v. P.2d Cal.2d Commrs. 884]; Dryden v. Board Pension 42 Cal.2d P.2d 104].) believe that the right We also 579 [59 but within the meaning here in is not vested “fundamental” only Pierna, Bixby v. is fundamen- supra. “In whether the right determining it, but not alone the effect tal courts do economic weigh aspect the life of it to the individual in of it in human terms the importance (4 at It is consideration which renders situation.” the latter Above and the “economic beyond the instant fundamental. right aspect” cases, in all we have here a situation in which the benefits present pension well self- mean to the officer’s widow the difference between sought might and the that she through income support necessity supplement pension Thus, or other means.17 in human terms of the employment impact decision is manifest. not with right are here concerned however, that we
It is urged, Whereas the the allowance. the amount of but with death allowance itself fundamental, it is vested be considered to an allowance might right be- amount is not. We to an allowance argued, right particular the situation be- the realities of that this fails to recognize lieve objection above— consideration fore us. to one side the Putting expressed practical of self- i.e., that the service-connected allowance possibility provides that the stat- whereas the residual allowance does not—we think support, county scheme death benefits for utory governing employees contemplates benefits, what are in which is service-connected effect two different one (Gov. Code, Code, §31781.1). It 31787) (Gov. and one which is not true that the wife had in either of these until no vested right pensions (see 1, ante) 17As we have pointed accompanying out above text fn. service- Strumsky’s connected death allowance in case be almost three times Mrs. would $181.03 per allowance of nonservice-connected month. *17 which the were of the benefits contingency payable happening upon (see v. Board Packer Retirement 215-218 660]; Sweesy P.2d v. L. A. etc. Retirement Bd. 37]), (i.e., but contingency that upon happening husband) the death of her she a vested fundamental acquired right one or the pension to whether or not death was other—according service-connected. It is the latter which deter- question requires mination under the rule we today—a which, announce be- determination cause it, the Board lacks to must make be madd power court through exercise of its on the evidence independent judgment produced before the Board.18
The is judgment reversed cause remanded to the trial court for further consistent proceedings with this opinion. J., Tobriner, J., C. J., and Mosk,
Wright, concurred. BURKE, J. that, The as a I dissent. hold matter of constitu majority law, tional henceforth our trial courts must reweigh and independently decisions of local administrative which adjudge agencies touch “fun upon vested! damental The rationale to this rights.” employed place ruling upon a constitutional basis is that in 1950 the thousands of local boards in this state were of the to exercise deprived right Given the quasi-judicial power. critical of the new rule and the importance majority’s vast it will changes review, cause in comes administrative to mind: question immediately has it Why taken this nearly years make The startling discovery? is, course, rhetorical; the cases a unanimous 1964 (including decision this court) have considered and the ma rejected uniformly jority’s the effect premise regarding of the 1950 amendment to article VI of our state Furthermore, Constitution. if indeed local agencies may such exercise quasi-judicial weigh evidence adduced at power, before hearings them thereon, render binding decisions based such local widespread activities as boards,* are conducted such what I, ante) court, (part the trial 18We have indicated above out an abundance caution, finding to the effect supplemental made of fact that if were a case in judgment it was its it authorized to exercise on the evidence would Strumsky find that Mr. was service-connected in nature. Because this death ,qf remand, finding decision we it will form the basis trial court deem observe, judicial economy in the review of appropriate interest after Pierno, record, (See Bixby finding supported by that that substantial evidence. supra, 4 Cal.3d fn. councils, trustees, 1I.e., city activities such those entrusted to boards of school freeholders, commissions, boards, boards, zoning planning charter revision boards adjudging excuses trial courts from further independently principle affect fundamental vested rights, of local which do not decisions the exercise of but at the same time constitute quasi-judicial powers? can not have it both either local boards have majority ways; quasi-judicial* exists, insist, If, no do not. as the they majority longer power must every then decision of which someone necessarily agency complains *18 however, be reviewed the courts. The majority’s independently premise, incorrect, unbroken line au demonstrably an of patently, reversing back more than 100 thority extending years.
In addition to other serious which will follow today’s consequences decision, the has majority (in taken from the an ironic viola- Legislature tion of the of doctrine) its constitutional to separation authority provide local bodies governmental and invest them with appropriate Unless and until a powers. remedial constitutional amendment has been to rewrite into the adopted Constitution that which the decision majority here emasculates for such (authority local to exercise quasi- judicial courts will power), for the first time in the required, history state, undertake and burdensome task unnecessary of reweigh- ing (without redeciding administrative deference to every expertise) complained decision of the thousands of local boards which affect “fun- damental vested Moreover, rights.” improperly extending scope that term to include mere benefits, economic the majority vastly expand commissions, boards, variance appeals building codes, boards under police fire and boards, appeals boards and pension boards, and retirement civil systems service and merit commissions, boards, civic parade licensing boards, parks business playgrounds boards, library commissions, boards, recreation boards, animal shelter zoo many boards and others. process, including fact-finding and decision-making Rptr. commissions palities to be an inaccurate or unacceptable description of the Molinari in power and the tions.]” essence, stitution forbids local boards the capricious, been ... 2Unlike the fact in the courts if rights subject [11] available 550], foregoing power under Article we are faced The connection with matters or fraudulent “A municipality may lawfully Le dealing solely essential characteristic majority through Strange concomitant supported by XI, judicial herein with the is termed appropriate (ante, action. section City requirement substantial evidence and are review under heretofore well-defined municipal power Relief “quasi-judicial” 8V2, Berkeley, court action. properly fn. of the subdivision 4 of the Constitution. [Citation.] from the latter class of 14), I to make a confer affairs. This make fact submitted to it after a quasi-judicial body do not find whether quasi-judicial powers because it invohifesan functions. determination power administrative the term provision which must be the result of As acquired by actions is its fact stated hearing. “quasi-judicial” standards. on boards or of our Con- adjudicatory adjudication adjudication has arbitrary, munici finding Justice upheld always [Cita Cal. In the number of decisions review.3 In view subject judgment of the grave decision and the majority’s errors con- consequences therein, tained I will review the at some length. opinion agency 1. Constitutional sources powers—The local incor- majority assume that the rectly source of local boards to exercise power quasi- VI, judicial solely functions derived (fact-finding) from article Constitution, of our courts, which vests in the and which authorized the formerly towns, Legislature to establish “inferior courts” in cities and course, counties. Of seems, weak as it majority’s premise, is that local administrative agencies were considered “inferior courts” by the framers of our Constitution. This was over 100 premise exploded years ago. *19 it 1868, unnecessary out that was
As this court correctly pointed early VI, 1, that article holding to resort to the presents “expediency” In Peo- in article III. to the provision an exception separation powers 520, III (1868) the court that article ple v. Provines 34 Cal. explained Government, that the of the State not the local govern- “means powers shall divided into ments thereafter to be created be by Legislature, that the one shall have no three members of departments, department or lot in the of the affairs of either of the other part management depart- , (P. 534, court.) ments . . .” italics to local by govern- With respect ment, not, proprio vigore—create “. . . the Constitution does of itself—ex but, or establish that local or any governments; assuming municipal will be shall be created and governments required, they provides established and there . . . by [Citing Legislature, subject. drops various of article XI estab- provisions regarding Legislature’s power lish local government These show that the very clearly bodies.] creation and of local regulation and subordinate such as governments, Constitution; county, and town is not city governments, attempted is, the whole of local and subordinate subject governments instrument, Government, turned over to one branch of the which it pro- defines, vides and with certain admonitions for its only guidance.” (Pp. 532-533.)
The court in Provines substantiated its of article analysis scope III that “The mischief . . by noting . against they framers of [the no, Bixby 130, 234, 242], Pier 3See v. Cal.Rptr. Cal.3d 144-147 481 P.2d [93 My regarding views the need for a uniform substantial evidence review of all ad 151) (p. my ministrative decisions are set forth in dissent in that case and will not repeated here. did come from sought state provide, the various Constitutions] whose hands officers, grades, but from higher inferior or subordinate far as the were vested. So of the Government leading the first and powers under the control of concerned, were were they sufficiently former Hence, . the framers of American Constitutions were content latter. . . latter, former, consider, with checks as we to be leaving upon (P. 537.) regulated Legislative Department.” not contain
Thus,
does
us that the Constitution
Provines teaches
con-
as are
other than
of local government,
limitation
tained in the
in statutes or charters adopted pursuant
Constitution itself or
boards
local
thereto.
no constitutional
Accordingly,
prevents
prohibition
substantial
ordinary
from
functions
exercising
subject
quasi-judicial
fol-
consistently
evidence review the courts.
Provines rule has been
lowed
(See
Supervisors (1894)
cases.
v. Board
subsequent
Wulzen
15,
Orange
353]; Holley County
(1895)
Cal.
25-26
P.
[35
Cal.
790];
Commission
423-424
v. Civil Service
P.
Dierssen
[39
513];
Mariposa v.
County
P.2d
Merced
920].)
Irr. Dist.
It is true
(1948) 32
P.2d
476 [196
in for-
that the “inferior courts” language
cases have
that some
suggested
the exercise of
functions
also furnished
basis for
mer article VI
Drummey
Bd.
Funeral Directors
(See
v. State
local
government.
848];
Optom-
Cal.
Bd.
Laisne v.
St.
*20
831,
457].)4
(1942)
P.2d
Yet no case has ever
etry
19 Cal.2d
847 [123
indeed, the
article VI to
the sole
of that authority;
considered
be
source
(the
Provines’
that article XI
“home
cases have followed
assertion in 1868
of
rule”
in
with article III
conjunction
provisions),
(requiring
separation
additional,
of state
furnish
powers
government),
independent support.
Thus,
its oft-cited
in
the Court of
handed down
opinion
1941
Appeal
53, 59,
Commission,
v.
supra,
Dierssen
Civil Service
in
Cal.App.2d
Peters. The
an
authored
then
Justice
E.
by
Presiding
Raymond
opinion
court,
herein,
flatly
now raised
rejecting
argument
by
majority
respect,
VI in this
article
upon
Laisne’s reliance
4One
criticized
commentator
to statewide
long
both as
was
settled
of
State
noting
previously
that
“.
. the law the
.
courts.’
‘inferior
calling
boards
boards,
local
of
local
and no one dreamed
boards and
Again,
created,
agencies, are
agencies,
the statewide
like
the truth is that these local
legislative
courts,
general
exercise of the
but in
to create
power
in exercise of
not
administration,
lying
agencies for their
pass
provide
laws
deciding
of fact
degree
issues
finality in
judiciary.
of
outside the
The limited
(McGovney, The
exclusively
judicial
function.”
legislature gives
them is not
Agencies,
Administrative
Decisions
State
Chaos in Court Review
California
Examiners, 21
409-410;
391,
Medical
Dare v. Bd.
see
So.Cal.L.Rev.
J.].)
790,
opn.
Traynor,
by
& dis.
[conc.
P.2d
304]
boards,
noted that “The
as to whether
charter
local
by
provision
commission,
such as a civil service
be
with
fact
may
invested
judicial
seriously
seems never to have been
in this
finding
questioned
state.
powers
The books
full of
cases
or
that where fact
holding
expressly
impliedly
have been
on
finding
conferred
local boards their determination
powers
will not be
aside
set
unless
abuse of
an
discretion is
pleaded
proved,
is,
that
it be
unless
that
acted
alleged
the board
proved
arbitrarily,
or
capriciously
(Italics added.)
fraudulently.
The court ac-
[Citations.]”
that in such
knowledged
cases as Standard Oil
v.
Equal.
Co.
State Board of
119],
In majority basis for the exercise of functions.5 Nothing constitutional quasi-judicial (as solely limits local art. Ill contained in Constitution powers pertains concede), state as the and the home rule to government, majority provisions charter XI vest broad local from (flowing of article government power or provision legislative grant). The the 1950
2. amendment to article insist VI—The majority effect decided, that Dierssen was that the sole constitutional incorrectly pro- vision local boards to exercise functions was con- empowering VI, tained in the “inferior courts” of former article language was deleted As I language 1950 constitutional amendment. however, have Dierssen continued the unbroken chain explained, simply of cases which commenced in 1868 with Provines and which held that the state Constitution no limitation of local imposes power govern- upon ment in dealing affairs. municipal
Yet the conclusive refutation of the is that the Court majority position it, 5As I majority’s ruling understand primarily upon premise is based that, in the express absence of grant power, agencies an may local quasi-judicial exercise clearly functions. Yet as Provines Dierssen cases so grant explain, such a power implicit rule of article home XI powers granted and in the Legislature provide govern local to article, government. ment contained in that and the limitation of article III to state majority rely The “leading of a field of local remarks commentator in the government” right govern municipality effect that a has no “inherent self Yet, (ante, ment . . . .” fn. as in a this same commentator explains work, subsequent chapter corporations beyond dispute powers municipal of his “In addition to conferred on constitution, charter, express enumeration in the statutes or it municipal corporations possess implied, sometimes certain incidental, added; McQuillin, (Italics referred to as . . . .” Municipal powers (1966 ed.), 10.12, 765-766.) Corporations include those implied powers 3d pp. rev. These powers arising necessarily reasonably powers expressly from those granted, give powers powers granted, those those expressly essential to effect to regarded indispensable government municipality local to enable the objects (Id., 767-771.) fulfill pp. power for which it was formed. to conduct fact-finding hearings having finality (being and make decisions at least a limited sub ject review) ordinary clearly implicit substantial in the constitu evidence seems view, fact-finding grant majority tional under article XI. Under the hearings purpose, would serve little which result since the and conclusions *22 re evidence and therefrom the trial in the must be court ignored by reweighing an to render the in order to fulfill its obligation case determining newly imposed it. review of the cold record before independent judgment n 52 court, and this long argument considered and Appeal, ago rejected
that amendment of local had effect review any upon judicial Sox, First, 1953, Savage administrative decisions. in the court in v. 479, 80], was faced with the contention Cal.App.2d that, by reason of the 1950 deletion the Legisla- language empowering ture to courts,” create “inferior local administrative bodies lost thereby their former to exercise authority Bray, functions. Justice quasi-judicial writing court, a unanimous reviewed the Provines Dierssen deci- and as discussed above and held follows: “The sions quasi-judicial power . and officers . . has been two theories: local boards upheld upon case, supra, 53, of cases like the Dierssen that applying Constitution, rule of the the home that of such cases provision 557, Equal., supra, as Oil Co. v. State Board Standard apply- VI, 1, the former article of the Constitution. The ing language amendment to that section as shown by arguments purpose state, voters was to reduce the number of inferior courts to interfere in with anywise of boards offi- quasi-judicial powers cers who are not courts in the sense of that section. . . . The ex- power erted in this case from [discharge civil is a affair purely municipal service] and the voters in reducing number of inferior courts never intended to, nor did they, way interfere with the rights granted municipali- ties, counties and cities and counties in the other of the Consti- portions tution. The elimination Legislature other provide inferior courts than the courts left municipal justice still the constitu- tional under which the charter of a could law- city county fully confer quasi-judicial on boards or commissions dealing strictly 488; (P. affairs.” municipal italics by court.)
Next, 1964, Savage court and unanimously expressly approved Berggren and its of the effect 1950 amendment. In interpretation Moore, 522], v. 392 P.2d Cal.Rptr. plaintiff had contended that the trial court erred in to exercise its inde refusing pendent the decision of a judgment regarding council to city adopt We “Plaintiffs’ further redevelopment disagreed: plan. suggestion holding to exercise judgment) [refusal contravenes intent of the 1950 amendment of section 1 of article VI of the California Con (See stitution Sox, is likewise Savage without [supra], merit. 118 Cal. .)” 485-488 . . . App.2d Berggren decision in settled assumed our
One would have “Local Indeed, textwriter commented that matter. as one recently functions, Const., Cal. art. can because exercise ‘judicial’ simply
53 below does apply 1, ITT, establishing powers, separation § 1.3, 1966) (Cont.Ed.Bar Mandamus Administrative (Cal. level.” state Provines, supra, 34 Cal. 5, People v. citing abandon decided to now what basis majority I to understand on fail Berggren the effect of 1950 Savage and regarding the reasoning since 1964 has come to light information no new Certainly, amendment. amendment; research that own my of the framers of the intent regarding to effect any was not intended discloses that the amendment conclusively of local administrative whatever in the functioning substantive change (See of those decisions, of the decisions agencies. or review in. 41; 13-20, Cal., Biennial 12th Council of pp. Judicial Report Since Cal., 13-14). 14th Biennial Council of Judicial Report pp. 1950, local held, that boards the authorities properly uniformly prior functions, the homerule reason of exercised provisions quasi-judicial III, and since it is clear that of article of article XI and the narrow scope not intended to effect a the 1950 amendment to article VI was change boards, how can this court in 1974 law to local (following applicable the 1950 that 1964) decisions in 1953 seriously suggest contrary in administrative amendment caused radical revolutionary changes 25 local boards have for law? Under nearly years analysis, majority’s likewise, the trial no been they longer possess; exercising powers their have, failed undertake for that courts improperly period, view, In exercise review. my responsibility is absurd. this analysis unfortunate effect has the additional placing decision majority’s local agencies beyond of review of important question scope overrule, either majority In so doing, control of Legislature. silentio, the Provines-Dierssen line of cases or sub (holding
expressly from the rule local derive their from home Savage Berggren cases VI), art. and the not from Legislature, addition, the amendment). the effect In (regarding majority 1950 that the substantial overrule a dozen or more cases this court holding scores evidence test review6 and controls in all cases local involving agency Moore, Berggren supra, Redevelopment 6See, 349; In re 347, e.g., v. 61 Cal.2d Hill, 21, 74, 538]; Bunker Albonico v. Plan Madera Irr. Albert, Dist., Cal.Rptr. P.2d 61 39 389 [37 Cal.2d Dist., 95]; 343, Damiani v. 735, 350 Cal.Rptr. P.2d [3 Cal.2d 17 Ry. Kings Water etc. Co. Co. 15, 780]; v. Atchison 48 Cal.2d P.2d [306 Beach, City Long Thompson 1]; Cal.2d v. 47 Cal.2d P.2d [302 Fascination, Hoover, Inc. 649]; 264-266 v. P.2d [259 Equalization, Board 656]; P.2d Covert State *24 54 of
of other cases
that the decisions
local retirement boards such
holding
****7
board herein are
a substantial evidence review.*
respondent
subject
have
inter
Finally,
acted in
realization that
their
majority
apparent
of the
of
at issue faces a broad front
pretation
provisions
The
“contrary opinion” by legal scholars.8
over these con
majority pass
trary
that,
with to the
opinions
comment
extent these scholars express
(ante,
36,
“we
with them.”
fn.
Such
6.)
disagree
contrary opinion,
p.
fiat is
disagreement by
one
have
prerogative
but
majority,
might
for a
hoped
more
persuasive insight into
problem.
545];
Department
Power,
La
13];
Prade v.
47,
Water &
53
of
27 Cal.2d
P.2d
[162
Gabriel,
City
Walker v.
879,
San
of
349,
884
P.2d
142 A.L.R.
[129
1383]
nor, J.];
opn. by Tray
supra,
[conc.
Optometry,
Laisne v. Cal. St. Bd.
19
of
831, 847; Imperial
Supervisors,
780];
Water Co. v.
Civ. Mandamus, 5.65, § supra, subd. p. Cal. Administrative 75. 7See, Petry Retirement, e.g., 124, Cal.Rptr. v. Board 127 Cal.App.2d 273 [77 [55 of 891]; Bd., County 234, Rau v. Sacramento Ret. Cal.App.2d Cal.Rptr. 236 247 Retirement, 296]; 397, v. Board 198 Flaherty supra, 256]; 408 Cal.App.2d Cal.Rptr. [18 of Retirement, 115, Board 724]; Robinson v. F. etc. Board, 140 117 P.2d v. Corcoran S. Cal.App.2d [294 of 738, 114 59]; Retirement 740 P.2d System, Cal.App.2d v. Retirement Rogers [251 751, Board, 611]; 109 757 P.2d Odden v. etc. Cal.App.2d County 108 [241 Foresters 48, Board, 197, 23]; 49 P.2d v. Dornell Retirement 72 Cal.App.2d 198-199 Cal.App.2d [238 Board, 781, 266]; v. 65 P.2d Ware Retirement 549]; 788 P.2d Cal.App.2d [164 [151 Board, 101]; v. Retirement 49 60-61 Murphy P.2d Cal.App.2d Naughton F., 43 Retirement Board S. opn. by [conc. 714] of Peters, P. J.]. Mandamus, 1.3, 5; 8See California Administrative generally, supra, page Mandamus: Court Review Kleps, 1939-1949, Administrative Decisions Certiorarified of California 291-292; 2 Stan.L.Rev. Mandamus Reviewed: The Kleps, Certiorarified 1949-1959, 554, 560-562; Courts and Administrative Decisions Stan.L.Rev. California The Chaos in Court Review the McGovney, Decisions State Administra California of Peters, 409-410; tive 15 So.Cal.L.Rev. Agencies, Review Board Administrative Mandate, 313; Elliott, Limited Writ J. Rulings State Bar Certiorari and the Local Board, 586; Comment, L.Cal. Rev. Judicial Review Local Administrative Scope of in Agencies California, So.Cal.L.Rev. 332. to municipal this judicial powers of Savage v. normal opinion conceded that local doctrines plication stitution. stated that “No one would (Kleps, For example, major quasi-judicial supra, concluded, however, Under to state in prop for the Standard Sox\ this affairs this Ralph to re-examine field, agencies, Stan.L.Rev. at local administrative analysis, agencies Kleps but the home rule charter and that suggest the court found no in district court of that the could no the theoretical basis local commenting upon Oil Co. decision will at this late date local separation longer agencies agencies created appeal difficulty rest. the effect of the 1950 amendment regarded [1960] powers seriously modify has found itself compelled [in made chartered cities or counties.” that the sustaining district court of clause as inferior courts. The predominant article disappearance XI of the established the exercise of normal limited respect appeal quasi- con- ap- the major- I strongly Vested Rights—Finally, oppose 3. Fundamental right”; vested case a “fundamental instant involves ity’s ruling sur- than a between two concerns more choice types case nothing *25 some receive a benefit of will vivor retirement benefits. Plaintiff clearly amount; difference kind, in albeit the benefits differ a mere quantitative a in amount at not be to involve issue should considered fundamental Otherwise, of decisions right. adjusting thousands routine agency literally will “funda- economic benefits henceforth considered decreasing mental,” our trial evaluate busy courts requiring independently all factual of these and technical reweigh often proceed- aspects complex (For case, ings. cases, as com- the instant will example, many present medical best resolved the local plicated agency questions equipped so, do rather than with the administra- by a trial court cold only working tive it.) record before in the as “vested” cases to retirement benefits being refer
Although specific beneficiaries,' vested benefit in and his no right member of until the contingency amount arises the happening upon Retirement, Cal.2d (See Packer v. Board 35 benefit is payable. of Beach, City Long v. 660]; P.2d Kern 29 Cal.2d 215-218 [217 Oakland, 799]; City Casserly 855 v. P.2d 66-69 [56 [179 237].) Dept., case P.2d The most Bertch v. Social analogous Welfare 485], held that an wherein this court applicant for review of old benefits is entitled to an age judgment an decision: here adverse administrative “Petitioners were not possessed of a vested benefits but the to make old right, right age application that they were able to with the provided comply statutory prerequisites Martin, (Welf. Code, & et (See Taylor therefor Inst. also seq.).” benefits].) In the instant Cal.Rptr. 211] [welfare case, to a right contingent death benefit was similarly service-connected a service- including compliance statutory prerequisites, proof connected death. above,
For the reasons set I dissent forth to the majority respectfully opinion. *J.,* J., Roth,
McComb, concurred. Burke, concur with which I ROTH, J.*The Brother my dissent there is I trust no impropriety all no requires amplification. respects, of its statements and an emphasis implications. reiteration of some of its *Assigned by the Chairman of Judicial Council. principle separation which the powers upon majority predi- is, course,
cate their an our opinion integral part structure—but the keystone of that structure is the that all proposition flows from Before and People. (1941), after Dierssen certainly Burke, J., out pointed the bench and bar were convinced that the Constitution had been amended adequately to endow a People “local agency” make binding of fact findings when such based upon substantial evidence. announced
The new construction
does not
majority
remotely
lack of due
suggest any
process
the amendment
requirements
con
sub
strued and
silentio concedes that due
has been
*26
process
complied
in the
a
conducted
“local
hearings
within the
agency,”
meaning
Family
as Sniadach v.
Corp.
current cases such
Finance
(1969)
U.S.
395
349,
1820];
337
L.Ed.2d
Goldberg Kelly
89 S.Ct.
v.
(1970)
[23
397 U.S.
287,
1011];
254
Morrissey
L.Ed.2d
90 S.Ct.
(1972)
v. Brewer
[25
408
484,
2593];
L.Ed.2d
U.S. 471
92 S.Ct.
Appellate
Randone v.
Depart
[33
709,
ment
242]) and the of what fact binding scope of a “local agency” the “administrative expertise” majority discussion, Burke (See in the case at bench. illustrated graphically Pierno, ante, dissent, and Bixby supra.) of fundamental an definition
Pierno enunciates rights* ambiguous ad hoc basis but to illus must be determined on an concedes such rights the definition the difference between fundamental and other right, trate a an for distinction that to the case-hardened job application points However, not a fundamental but a dismissal is. in a from right job sepá Mosk, J., rate to the illustration and concurring a caveat registers opinion, says that, in no terms he not intend uncertain stated conditions does given to be bound cases which is not hold an job application a fundamental right.3 conclusion, brief, at different opinion. albeit in a on vested written In fundamental rights, conclusion, the “local agency” may evidence reach one if the trial court takes *27 law, on mandate the trial no lawyer may state court. A accept review compulsion appellate then under of must settled courts However, court, findings. court’s there is if no evidence is taken in the trial finality the any state courts Supreme spoken. until the Court has adroit Since right, litigant transmute right can a fundamental vested into always hopefully anticipate “civilly will writ” the that a federal district court procedure may fruitful and fertile field federal be found in for such courts) United States Code 1343
28 of federal and 28 United States (jurisdiction (the sections). Code sections 1443and 1446 removal 2The embrace of rights vague fundamental vested is and illusive as set forth in Pierno, Bixby v. 242], 4 Cal.3d 130 Cal.Rptr. [93 491 P.2d the wherein court says page at 144: “The courts must decide case-by-case on a basis whether an ad ministrative decision or substantially class of decisions affects vested fundamental rights and requires (Merrill thus independent judgment Department review. of Vehicles, supra, 33]; Beverly Motor Hills Fed. & Cal.Rptr. Superior S. L. Assn. v. Court 183].) Cal.Rptr. As we explain, case-by-case analysis shall the courts consider one, right the nature of the of the individual: whether it is a fundamental and basic agency, which will suffer substantial interference a the action the of administrative and, in, if it right, by, is such possessed fundamental whether it and vested the is merely case, sought by agency individual him. In the latter since the administrative engage determining qualifies must in the delicate task the whether individual for sought right, expertise the the courts have to the administrative the deferred agency. If, however, individual, right acquired by right has been if the fundamental, sufficiently courts have held the loss of it is vital to individual abrogation right important compel to a full and review. The is too (Italics added.) relegate individual to it to exclusive administrative extinction.” 3Mosk, J., 161) concurring only qualification opinion (p. in a states: “There is one difficult, context, my approval. I it factual appropriate attached would find in an
One wonders what the result at bench would have been if the constitu- “local tional which have acted so language, agencies” pursuant many had included years, language a “local specifically authorizing agency" make a determination of facts in binding fundamental vested respect Since what are and what are not rights. rights fundamental rights definition, vested elude can amendment be framed any which would with- stand nullification it if deprives judiciary binding fact-finding power case. If the any exercise “local agency” binding fact-finding of a exercise power judicial function in of fundamental and respect vested is also the rights—it exercise of a function in respect if be rights, any, may as tolerantly regarded nonfundamental and not vested.
The current decision demonstrates that amendments to our fundamental law, even ratified and courts, though originally be accepted by may reconstrued in such a manner as to effectually emasculate them.
The real is not one of separation but whether have, People wrote, Constitution they originally fore- effectively closed themselves from in their making change constitutional struc- ture and have abdicated all to the judiciary. for a 24, 1974, was denied
Respondent’s petition rehearing April was J., modified to Burke, read Clark, above. opinion printed J., were that the should opinion petition granted. *28 recognize rights—as majority vested or fundamental those terms used in the opinion—in profession state-regulated one who is licensed as a member voca- tion but not in practice calling, another who seeks a his if particularly license equally latter well qualified virtue of his of time treasure. . . .” investment added.) (Italics