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District Court of Appeal, Second District, Division 2, California.


Civ. 13040.

Decided: April 10, 1942

Holbrook & Tarr and W. Sumner Holbrook, Jr., all of Los Angeles, for appellants. Earl Warren, Atty. Gen., and Bayard Rhone, Deputy Atty. Gen., for respondents.

An opinion was filed herein on December 22, 1941. Thereafter a petition for rehearing was granted and the matter set down for oral argument on January 28, 1942. Presiding Justice MOORE and Justice McCOMB having disqualified themselves, the issues were argued before Acting Presiding Justice WOOD and Justices pro tempore SCOTT and STEPHENS. Upon due consideration we are satisfied that the former opinion properly disposes of the appeal.

Petitioners appeal from judgment of dismissal of their fourth amended petition for writ of mandate, entered following order sustaining demurrer without leave to amend. It was sought to review a decision of respondent personnel board discharging petitioners from their positions as employees of the State of California. In the action they also sought an order of reinstatement and back salaries.

The judgment of the trial court must be upheld because petitioners had failed to exhaust their administrative remedies before instituting this action and were not entitled to a writ of mandate.

The chronological record shows the omission which was fatal to petitioners' case:

On July 12, 1938, complaints against petitioners were filed with the state personnel board charging petitioners with incompetency, inefficiency, dishonesty, discourteous treatment of the public, failure of good behavior, wrongful behavior and other acts alleged to be incompatible with and inimical to the public service of the state. Petitioner Alexander had held the position of Petroleum Production Inspector with the State Land Commission. Petitioner Sturzenacker had held the position of Chief of the Division of State Lands, with the same commission.

On August 23, 1938, respondent State Land Commission suspended petitioners from their respective positions, and this order has not been vacated.

On September 26, 1938, hearings on the petitioners' cases were commenced before respondent State Personnel Board.

On April 8, 1939, a copy of the board's findings, conclusions of law and decision adverse to petitioners was mailed to, and two days later was received by, petitioners' counsel.

On April 11, 1939, the decision was entered on the official roster of state employees.

On April 21, 1939, the findings, conclusions and decision were entered in the minutes of the board.

On July 5, 1939, this petition for writ of mandate was filed.

On September 11, 1939, petitioners filed with the board a petition for rehearing in their case. It was denied at a meeting of the board held ten days later.

Petitioners assert that the demurrer to their fourth amended petition for a writ of mandate was sustained upon the sole ground that they had not petitioned for a rehearing by the board before they filed their petition for the writ of mandate.

The State Civil Service Act (Deering's Gen.Laws, 1937, Act 1404), in effect during the period under consideration, made provision for filing of charges against state employees and hearings thereon. Section 173, subdivision (c), of the act provides in part: “Rehearing. Within thirty days from and after receipt by him of a copy of the decision rendered by the board in a proceeding under this section, the employee or the appointing power may apply for a rehearing by filing with the board a petition in writing therefor.” This petition, on notice to the parties affected, must be granted or denied within sixty days. If it is granted the case is set down for further hearing. Whether the time within which such application for rehearing must be made be calculated from the date of service on petitioners herein of a copy of the board's decision or from the date of entry of the decision in the minutes of the board, it is obvious that more than thirty days, in fact about five months, had elapsed before the petition for rehearing was filed with the board. Not being within the time provided by law, it was not effectual for any purpose and the perfunctory denial by the board added no vitality to it.

“Where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act. * * * It is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis, and binding upon all courts. * * * exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts. * * * where the administrative procedure prescribes a rehearing, the rule of exhaustion of remedies will apply in order that the board may be given an opportunity to correct any errors that it may have made.” Abelleira v. District Court of Appeal, 17 Cal.2d 280, at pages 292, 293 and 302, 109 P.2d 942, at page 949, 132 A.L.R. 715. This rule is grounded in experience and reason. The instant case illustrates its validity and justice.

Petitioners make complaint concerning the proceedings before the personnel board, and assert that they were of such a nature that they deprived petitioners of their rights without due process of law. It is alleged that by reason of various matters, the essential ones of which are set forth below, “there is not and never has been any determination by respondent board, or a quorum of respondent board, or by any unprejudiced or impartial members of said board upon the merits of the charges” against them. It is alleged that the evidence was taken partly before the entire board of five members, partly before less than five members and partly by having one of its members act as referee and report to the board. Prejudice is charged against one board member. It is claimed that an attempt at hasty and ill–advised action evidenced prejudice on the part of two others. Testimony is alleged to have been admitted contrary to rules of evidence. Hearings are said to have been unduly extended, even requiring attendance on a legal holiday, and counsel for petitioners were hurried beyond reason at their sessions before the referee. It is finally claimed that petitioners were required to argue the case before the whole board prior to the time when the transcript of 3,000 to 4,000 pages and 152 exhibits was completed. It is at once apparent that upon petition for rehearing matters of procedure or evidence affecting the substantial rights of petitioners could have received consideration by the entire membership of the board. At that time it appears they would have had the official transcript of the evidence, and if in any respect it failed to support their decision an opportunity would have been afforded to supplement the testimony or to modify their decision.

Appellants in their brief assert: “There is no question as to the meritoriousness of petitioners' application for judicial relief in this matter.” Our attention has not been directed by appellants to any portion of the record in this case in which they allege either (1) that there was not sufficient competent and legally admissible evidence to support a finding by the personnel board that the charges against them were true, or (2) the substance or effect of any defense testimony which would avail against that produced against them and which they were actually precluded by the board from presenting in their own behalf. If there was any such deficiency in the evidence introduced, or any weight to that offered and excluded, the personnel board should have been given an opportunity to call for or permit other testimony or to reverse its decision.

Judgment affirmed.

I concur in the judgment, because the decision of the Supreme Court in the case of Abelleira v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715, leaves no room for doubt that where an administrative remedy is provided by statute this relief must be sought from the administrative body, and that exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts.

It is made clear that such remedy has not been exhausted when the petitioners have not sought a rehearing, even though the statutory provision for rehearing is permissive in form. However, in the case of Gantner & Mattern Co. v. California Employment Commission, 17 Cal.2d 314, 109 P.2d 932, 934, the Supreme Court makes this statement: “The exhaustion of remedial procedure as laid down by the statute is required unless the petitioner can positively state that the commission has declared what its ruling will be in the particular case, and that, petitioner is unable to do.” If this is to be regarded as in the nature of an exception to the rule, has not the case been brought within the exception where the facts alleged show that the commission, in the same case and upon the identical situation which would be presented upon petition for rehearing, has so definitely and finally passed upon the question that its action upon a formal petition for rehearing would be obvious? If this is not true, then the exception (if exception it can be called) is practically confined to the rare case in which the petitioner can allege that the commission has declared, in so many words, that if a rehearing is asked for it will be denied. With this in mind it may be of value to briefly review some of the facts here presented.

It must be remembered that the matter comes before us after the trial court had sustained a demurrer to the petition without leave to amend. Therefore, all material allegations of the petition must at this time be taken as true. According to such allegations, defendant Wood, a member of the tribunal established by law to hear the complaints, made the statement, before any hearing had been commenced or a word of evidence presented, that “he had personally investigated the charges against petitioners and each of them, and in his opinion the charges were well founded and petitioners and each of them were guilty of the acts alleged therein.” If a judge should make such a statement before beginning a trial he would be instantly disqualified. The question of whether or not Wood was disqualified to act was certainly a matter vitally important to petitioners. In fact––particularly in view of the later action of the board––it may even be questioned whether or not any hearing has been held that complies with the statute (sec. 173(b), State Civil Service Act), which says: “It shall be the duty of the board * * * to consider carefully the evidence submitted in the hearing and to render a decision which in its judgment is just and proper.” Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 80 L.Ed. 1288; Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129. The matter of this disqualification was presented to the entire board and the entire board acted in refusing the protest. Subsequently the board itself, over petitioners' protest, again acted upon the same matter by appointing the alleged objectionable member as sole referee to hear the evidence, thus, from petitioners' standpoint, adding insult to injury. Finally, the entire board, over petitioners' protest and acting solely upon a report of the alleged objectionable referee, decided the case adversely to petitioners, although not a single member of the board excepting such sole referee had heard a word of the testimony offered in behalf of petitioners and could not have read the record of it because at that time the transcript had not been written up.

So far as this vital matter of whether or not Wood should be disqualified is concerned, no new facts and no new problems for determination were presented to the trial court or to this court that had not been presented to and passed upon by the defendant board, not only once but at least three times. Is it sound reasoning to now say that all redress must be denied to petitioners because they did not give the commission an opportunity to pass upon the same matter a fourth time?

I have concurred in the judgment herein solely because as I read the Abelleira and Gantner decisions the rule as there laid down does not permit of the additional step suggested by the above discussion. I cannot refrain from observing, however, that if the exception pointed out in the Gantner decision is to be of any practical value this additional step is unavoidable.

SCOTT, Justice pro tem.

W. J. WOOD, Acting P. J., concurred.

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