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Court of Appeal, First District, Division 3, California.

Mary McCULLOUGH, Melvin McCullough, Michael Johnson and Rosaline Johnson, by their Guardian Ad Litem Mary McCullough, Plaintiffs and Respondents, v. Hrayr TERZIAN, Director of the Alameda County Welfare Department, John Montgomery, Director of the Department of Social Welfare of the State of California, Defendants and Appellants.

Civ. 25830.

Decided: August 19, 1969

Thomas C. Lynch, Atty. Gen., California, Elizabeth Palmer, Deputy Atty. Gen., San Francisco, Richard J. Moore, County Counsel, Alameda County, Ben Zuppan, Deputy County Counsel, Oakland, for appellants. Thomas L. Fike, Thomas Schneider, Burton Danziger, David Nawi, Clifford Sweet, Legal Aid Society of Alameda County, Oakland, for respondents.

For Opinion on Hearing, see 87 Cal.Rptr. 195, 470 P.2d 4.

On April 19, 1968, respondents filed in the Superior Court in Alameda County a petition for writ of mandate and a complaint for declaratory relief on their own behalf and on behalf of all persons in the State of California receiving Aid to Families with Dependent Children benefits.1  Both causes of action were based on the contention that express provisions of the Welfare and Institutions Code and the due process clauses of the California and United States Constitutions require an adequate hearing prior to the withholding or termination of AFDC benefits.

On the date the action was filed, an alternative writ of mandate was issued directing appellants John Montgomery, Director of the State Department of Social Welfare, and Hrayr Terzian, Director of the Alameda County Welfare Department, to release forthwith the warrant due the named petitioners on April 1, 1968 and all other warrants due them thereafter under the AFDC program or show cause why they should not do so.   On April 25, 1968, the return date on the alternative writ, appellants appeared and filed a responsive pleading.   It was stipulated that the class of persons represented by the named petitioners consisted of recipients of public assistance under the Aid to Blind, Aid to Needy Disabled, Old Age Security, and AFDC programs, the so-called “categorical aid” programs, rather than under the AFDC program only.

The court found that appellants had substantially complied with the provisions of section 44–325.43 of the State Department of Social Services Manual (hereinafter referred to as PSS 44–325.43) 2 in terminating the named petitioners' public assistance benefits;  that the petitioners were caused irreparable injury by the withdrawal of said benefits;  and that the class of persons receiving public assistance benefits under the categorical aid programs was adequately represented by the named petitioners.   The court concluded that the procedures established by PSS 44–325.43 and followed by appellants failed to provide the hearing required by law.

The judgment declared invalid the regulation contained in PSS 44–325.43 “because and to the extent that it does not provide a hearing with adequate procedural safeguards” prior to the withholding of categorical aid benefits as required by state law and the United States and California Constitutions.   The judgment also ordered the issuance of two peremptory writs of mandate.

It is from this judgment that the appellants appeal.   The facts of the case relative to the named respondents need not be stated here as they have since been afforded a “fair hearing” and found eligible for continued aid.   Therefore the only issues remaining are those raised by the class action, namely:

I.  Does PSS 44–325.43 satisfy the procedural due process requirements of the United State Constitution?

II.  Does PSS 44–325.43 satisfy the procedural due process requirements of the California Constitution and the statutory provisions of the California Welfare and Institutions Code?

The regulations in question must be considered in the light of the fact that if aid is terminated or modified the state must grant the recipient a “fair hearing” as provided in Welfare and Institutions Code section 10950 et seq. and a judicial review as provided in Welfare and Institutions Code section 10962.

I.  Does PSS 44–325.43 satisfy the procedural due process requirements of the United States Constitution?

The appellants contend that the regulations in question meet due process requirements of the United States Constitution.   The regulations require prior notice specifying the proposed action to be taken, grounds therefor, information needed to determine eligibility, and a subsequent opportunity to be heard and to be represented by counsel, to the end that a fair determination can be made.   Full disclosure is to be made by the county of the information upon which the proposed action is based.   The notice may be given and aid withheld only if the county has evidence “which is both substantial in nature and reliable in source * * * indicating * * probable ineligibility.  * * *” (PSS 44–325.421.)   The recipient or his attorney also has the right to inspect the case file in the state department or any county at any time during business hours.  (Welf. & Inst.Code § 11206.)   Appellants further contend that the constitutionality of the regulations in question was raised in Wheeler v. Montgomery (U.S.D.C., N.D.Cal., 296 F.Supp. 138), before a 3–judge court, and that court found the regulations comport with the due process provisions of the United States Constitution.   A federal court in New York found a regulation of New York State, in some respects similar to the California regulation, not to be in accord with the United States Constitution.  Kelly v. Wyman, D.C.S.D.N.Y., 294 F.Supp. 893.)   The United States Supreme Court has noted probable jurisdiction in both cases (Wheeler v. Montgomery, 394 U.S. 970, 89 S.Ct. 1452, 22 L.Ed.2d 751;  Goldberg v. Kelly, 394 U.S. 971, 89 S.Ct. 1469, 22 L.Ed.2d 751).

The respondents contend that the regulations fail to include the necessary elements of due process in that they (1) fail to provide adequate notice;  (2) do not provide for confrontation and cross-examination of witnesses;  (3) do not require a decision based on evidence produced at the hearing and on the merits;  (4) do not provide an impartial trier of fact;  and that there is not compelling public necessity for these procedural inadequacies.

 Were the requirements of due process specified in the constitution or by statute our task would be simplified.   However, such is not the case.   As stated by the California Supreme Court in Sokol v. Public Utilities Commission, 65 Cal.2d 247, 254, 53 Cal.Rptr. 673, 678,d 418 P.2d 265, 270:  “What is due process depends on circumstances.   It varies with the subject matter and the necessities of the situation.”  In Cafeteria and Restaurant Workers Union, etc. v. McElroy, 367 U.S. 886, 894–895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230, the United States Supreme Court stated:  “The Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest.  “For, though “due process of law” generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings, * * yet, this is not universally true.'  [Citation]  The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.  [Citations]  ‘ “[D]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’   It is ‘compounded of history, reason, the past course of decisions * * *.’ ”

 Public welfare in the United States is a tremendous undertaking involving millions of recipients.   Applications for aid must be processed promptly and with a minimum of delay to the recipient, and modification and termination of benefits likewise be handled in a prompt manner if the system is to function.   These are the circumstances that must be considered in determining the content of due process in this case.   In the case of Escobedo v. State of California, etc., 35 Cal.2d 870, 222 P.2d 1 (see also Orr v. Superior Court, 71 A.C. 233, 77 Cal.Rptr. 816, 454 P.2d 712) where the charge was made that the statute violated the due process provisions of the state and federal constitutions in not providing for a hearing before suspension of a driver's license, the court stated that due process was not violated as the procedure was reasonably justified by a compelling public interest considering the substantial number of drivers involved, and to require a hearing in every case before suspension would substantially burden and delay if not defeat the operation of the law.   The Escobedo and Orr cases pertain to the financial responsibility of drivers as distinguished from those cases dealing with public safety and health.

There being no fixed rule it is necessary, therefore, to test the regulations in the light of respondents' contentions against the requirements of past decisions.

 Turning to the respondents' first contention, that the regulation fail to provide adequate notice, Section 44–325.43 provides:  “The recipient * * * shall be notified, in writing, immediately upon the initial decision being made to withhold a warrant beyond its usual delivery date for any reason other than death, and in no case less than three (3) mail delivery days prior to the usual delivery date of the warrant to the recipient.”   Neither party has offered any statement of facts or cited any authorities to show that the period allowed is or is not adequate, and we cannot say as a matter of law that the 3–day notice is inadequate.

The respondents next contend that confrontation and cross-examination of witnesses are essential elements of due process.   Respondents cite Greene v. McElroy, 360 U.S. 474, 508, 79 S.Ct. 1400, 3 L.Ed.2d 1377;  Walker v. City of San Gabrie (1942) 20 Cal.2d 879, 129 P.2d 349, 142 A.L.R. 1383, and Willner v. Committee on Character and Fitness (1963) 373 U.S. 96, 103, 83 S.Ct. 1175, 10 L.Ed.2d 224.   These cases do not hold that confrontation and cross-examination are essential to due process.

The Greene case involved a firing of the petitioner for security reasons.   In the petitioner's hearing before the review board he was not permitted confrontation or cross-examination of witnesses.   The actual question before the court was whether the President and Congress had delegated the power to the Secretary of Defense to conduct a hearing in this manner.   The court found they had not.   The court then ruled “We decide only that in the absence of explicit authorization from either the President or Congress the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.”   The court specifically stated it was not deciding the constitutionality of the question.

In the Walker case the only evidence offered the city council in a hearing to revoke a business license was a letter from the chief of police setting forth numerous charges against the licensee.   The licensee maintained that until the witnesses were produced and an opportunity given to cross-examine them there was no evidence before the city council.   The Supreme Court did not even comment in its opinion on this point but decided the case on the issue of what constitutes substantial evidence.

The Willner case at the most holds “that procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood.”   The concurring opinion points out “this does not mean that in every case confrontation and cross-examination are automatically required.   It must be remembered that we are dealing, at least at the initial stage of proceedings , not with a court trial, but with a necessarily much more informal inquiry into an applicant's qualifications for admission to the bar.”

On the other hand, the right to confrontation and cross-examination was expressly rejected in Dixon v. Alabama State Board of Education, 5 Cir., 294 F.2d 150, and was not listed among the requirements of due process in Knight v. State Board of Education, D.C., 200 F.Supp. 174.  (See also Thorpe v. Housing Authority, 386 U.S. 670, 87 S.Ct. 1244, 18 L.Ed.2d 394.)

 In view of the above authorities, confrontation and cross-examination of witnesses cannot be held to be an essential element of due process in a pretermination hearing.

 Respondents further contend that the failure of the regulations to require a decision by a person having no prior direct involvement in a case renders them inadequate to provide the protection required by due process.

Respondents quote from Wasson v. Trowbridge, 2 Cir., 382 F.2d 807, 813:  “It is too clear to require argument or citation that a fair hearing presupposes an impartial trier of fact and that prior official involvement in a case renders impartiality most difficult to maintain.”   However, that court did not hold that a person with prior official involvement could not hear the case but only that the petitioner had the right to show that the prior involvement was such that bias could be presumed.

The California Supreme Court in Griggs v. Board of Trustees, etc., 61 Cal.2d 93, 97, 37 Cal.Rptr. 194, 197, 389 P.2d 722, 725, a case involving the dismissal of a school teacher, stated:  “In support of the determination of the trial court that Mrs. Griggs was deprived of a fair trial, it is asserted that, prior to the hearing, the members of the board took evidence, held discussions with outsiders and expressed opinions concerning the accusation filed by the superintendent.   We find nothing improper in the conduct of the members of the board.”

In the light of Griggs the fact that the person conducting the hearing has had prior involvement in the case does not of itself constitute a violation of due process.

The respondents further contend that the regulations fail to require a decision based on evidence produced at a hearing.   The respondents point out that under the challenged regulation, the initial review and evaluation of the county's evidence takes place ex parte before the recipient is even notified of any proposed action.

 it is true that the regulations do not specify that the decision be based on the evidence produced at the hearing;  however, numerous cases in California hold that “the requirement of a hearing necessarily contemplates a decision in light of the evidence there introduced.”  (English v. City of Long Beach, 35 Cal.2d 155, 217 P.2d 22, 18 A.L.R.2d 547;  La Prade v. Department of Water & Power, 27 Cal.2d 47, 162 P.2d 13;  Carroll v. California Horse Racing Bd., 16 Cal.2d 164, 105 P.2d 110).   The county is bound by this requirement and it would be an empty act to conduct a hearing if this were not the case.   The fact that the initial review and evaluation of the county's evidence takes place ex parte before the recipient is notified of any proposed action is not improper in the light of Griggs v. Board of Trustees, etc., supra.   In Griggs the court stated:  “The first step to be taken in the termination procedure is the notification to the teacher that his services will not be required for the ensuing year.   It is thus clear that, before there is any occasion for a public hearing, the board must make an ex parte determination that there is good cause for dismissal, and, in order to be able to make this decision, the board must have some knowledge of the facts.”   This is essentially the procedure provided for in the regulations.

We conclude that the regulations do comport with the due process clause of the United States Constitution.

II.  Does PSS 44–325.43 satisfy the procedural due process requirements of the California Constitution and the statutory provisions of the California Welfare and Institutions Code?

 The respondents correctly state the point that in addition to the federal constitutional issues involved here, the State of California may insist upon greater procedural rights for its citizens than those required by the Fourteenth Amendment.

 Looking first to the California Constitution, Article I, section 13 provides that no person shall be deprived of life, liberty or property without due process of law.

In Abstract Investment Co. v. Hutchinson, 204 Cal.App.2d 242, 22 Cal.Rptr. 309, it was held that this provision is “identical ion scope and purpose with the Fourteenth Amendment,” so, in effect, adds no additional safeguards to those already included in the federal constitution.

 Welfare and Institutions Code sections 11458, 12200 and 12700 provide that benefits under the categorical aid programs may be withdrawn “for cause” requires notice and hearing before a withdrawal of benefits.

The case cited by both parties, Ratliff v. Lampton (1948) 32 Cal.2d 226, 195 P.2d 792, 10 A.L.R.2d 826, and the cases cited by respondents, Carroll v. California Horse Racing Bd., supra (1940) 16 Cal.2d 164, 105 P.2d 110;  La Prade v. Department of Water & Power, supra (1945) 27 Cal.2d 47, 162 P.2d 13;  Covert v. State Board of Equalization (1946) 29 Cal.2d 125, 173 P.2d 545, and Steen v. Board of Civil Service Com'rs (1945) 26 Cal.2d 716, 160 P.2d 816 all stand for the rule that where an agency is required by statute to act for cause, an affected party must be afforded a hearing prior to action unless there is a clear showing of a contrary legislative intent.   However, as the regulations in the present case do provide for a pretermination hearing, these cases are of little help.   The appellants assert that the hearing required by the statute need be no more than that required by due process.   The respondents maintain that in Ratliff the court specifically rejected this contention and that Ratliff stands for the proposition that “for cause” in a statute means more than due process i the constitution.

 Presuming the correctness of respondents' position that the words “for cause” in the statute require a hearing prior to termination, the respondents have no cause for complaint as the regulations provide the hearing.  Ratliff did not specify how the hearing was to be conducted, as that was not an issue in the case.

Here the regulations provide a pretermination hearing in compliance with due process, and as such fulfill the requirements of California law.

The appellants state that according to department regulations the county “should reach a decision as soon as possible” following the pretermination hearing.   Actually, if the pretermination hearing is to have any meaning the decision must be rendered before aid can be withheld.

The motion to take judicial notice of the regulations submitted by appellants is granted.   The motions made pursuant to California Rules of Court 23(b) are denied.

The judgment is reversed.


1.   For editorial purposes, Aid to Families with Dependent Children will hereafter be described as AFDC.

2.   “The recipient, the parent or other person responsible for the child in AFDC, shall be notified, in writing, immediately upon the initial decision being made to withhold a warrant beyond its usual delivery date for any reason other than death, and in no case less than three (3) mail delivery days prior to the usual delivery date of the warrant to the recipient.   The county shall give such notice as it has reason to believe will be effective including, if necessary, a home call by appropriate personnel.   Form ABCD 239, Notice of Action, or a substitute form, may be used for this purpose.   Every notification shall include:.432 A statement setting forth the proposed action and the grounds therefor, together with what information, if any, is needed or action require] to reestablish eligibility or to determine a correct grant..432 Assurance that prompt investigation is being made;  that the withheld warrant will be delivered as soon as there is eligibility to receive it;  and that the evidence or other information which brought about the withholding action will be freely discussed with the recipient, parent, or other person, if he so desires (see Section .434 below)..433 A statement of whether, if aid is withheld, the recipient will or will not continue to be certified for medical assistance during the month aid is withheld..434 A statement that the recipient, parent, or other person may have the opportunity to meet with his caseworker, an eligibility worker, or another responsible person in the county department, at a specified time, or during a given time period which shall not exceed three (3) working days, and the last day of which shall be at least one (1) day prior to the usual delivery date of the warrant, and at a place specifically designated in order to enable the recipient, parent, or other person:(a) To learn the nature and extent of the information on which the withholding action is base];(b) To provide any explanation or information, including, but not limited to that described in the notification pursuant to section .431 above;(c) To discuss the entire matter informally for purposes of clarification and, where possible, resolution.”