BERTCH v. SOCIAL WELFARE DEPARTMENT

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

BERTCH et al. v. SOCIAL WELFARE DEPARTMENT.*

Civ. 16056.

Decided: July 13, 1954

Howard B. Crittenden, Jr., San Francisco, for appellants. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., for respondents.

This is an appeal from a judgment of the superior court denying a petition for a writ of mandate to review an administrative order of the sate Social Welfare Board. The only allegation in the petition which states a cause of action is: ‘That said defendant Board on January 17th, 1952, made its own findings, not the findings of the Hearing Officer, Division of Administrative Proceedings who heard said appeals, which are contrary to the evidence adduced therein, and against the weight of the evidence; that said plaintiffs were and are receiving necessities of life to the extent of $17.00 per month, and no more, from their religious society, there being no legal responsibility or obligation of said religious society to so provide said necessities * * *.’

The admitted facts are that all the appellants belonged to a society named Christ's Church of the Golden Rule which demanded and received all the warrants issued by the State under the old age pension law and paid out to the pensioners such sums for their support as the society determined was necessary. Although all these facts are admitted on this appeal they were not admitted before the hearing officer of the state agency or on the appeal from his decision to that agency. This presents the only material ground on this appeal.

Preliminarily it should be said that there is no issue of religious discrimination involved in any stage of the proceedings and that the repeated efforts of the appellants to make that an issue are unconscionable and unfair to the state agency and to the superior court. In a memorandum opinion the learned trial judge stated: ‘The facts as disclosed by the entire record indicate that the action of the Social Welfare Board is not based on any religious ground whatsoever.’ Manifestly the issues do not relate to any question of religion in any form—no more than if the appellants were members of a tribe of Indians or of a fraternal or social group which appropriated the warrants from the State for its own use and benefit and cared for the individuals as it saw fit.

The sole issue in this appeal is whether the state board committed substantial error in changing the findings of the hearing officer on the question of ‘need’ without giving the appellants notice and an opportunity to be heard. These findings—numbered V, VI and VII—went directly to the controlling issue of whether the appellants were in need of financial support from the State. They were all changed by the state board without notice to or appearance by any of the appellants.

Section 11517(b) and (c) of the Government Code reads:

‘(b) If a contested case is heard by a hearing officer alone, he shall prepare a proposed decision in such form that it may be adopted as the decision in the case. A copy of the proposed decision shall be filed by the agency as a public record. The agency itself may adopt the proposed decision in its entirety, or may reduce the proposed penalty and adopt the balance of the proposed decision.

‘(c) If the proposed decision is not adopted as provided in subdivision (b) each party shall be furnished with a copy of the proposed decision. The agency itself may decide the case upon the record, including the transcript, with or without taking additional evidence, or may refer the case to the same or another hearing officer to take additional evidence. If the case is so assigned to a hearing officer he shall prepare a proposed decision as provided in subdivision (b) upon the additional evidence and the transcript and other papers which are part of the record of the prior hearing. A copy of such proposed decision shall be furnished to each party. The agency itself shall decide no case provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the agency itself. If additional oral evidence is introduced before the agency itself no agency member may vote unless he heard the additional oral evidence.’

If these findings had been properly made they would have ended the controversy because the need of the individual is the criterion by which the liability of the State must be determined. This is so because section 31 of article IV of the Constitution prohibits the grant of any public money ‘to any individual’. To enable the State to care for ‘aged persons in indigent circumstances' section 22 of article IV of the Constitution was enacted. In the federal Social Security Act, 42 U.S.C.A. § 301 et seq., the Congress likewise provided for assistance ‘to aged needy individuals'. 42 U.S.C.A. § 301. For these reasons we say that if the state agency had properly found that none of these individuals were in need of financial support, its decision would have been unassailable.

Since the procedural provisions of the act were not followed the cause must be remanded to the state agency for a further hearing and an explicit finding on the issue whether, under all the circumstances of the case, the applicants were in need of financial support under the terms of the act.

Inasmuch as this error might have been readily corrected by application to the state agency in the first instance, it is only reasonable that both parties bear their own costs.

Judgment reversed and remanded to the Social Welfare Department for further proceedings.

I concur in the order reversing the judgment on the ground that the State Social Welfare Board violated the provisions of section 11517, Government Code in adopting new findings without following the procedure outlined in that section. I pass the question whether there is any sound basis for the claim of religious discrimination but I cannot agree that the argument in apparent good faith of this question is ‘unconscionable and unfair’ to anybody. Nor can I agree that the error in procedure for which we are reversing ‘might have been readily corrected by application to the state agency’ in view of the fact that the attorney general acting for the agency has not admitted that there was any error in procedure. I would therefore leave the matter of costs to follow the usual course.

I dissent from the entire discussion of the question of ‘need’.

The majority opinion goes beyond the findings of the Board in its sweeping statement that Christ's Church of the Golden Rule ‘demanded and received all the warrants issued by the State under the old age pension law’. The Board found (Finding VI):

‘That all or a major portion of any grant of Old Age Security made to the appellants would not be devoted to meeting their individual and personal needs * * * but would * * * be devoted systematically and continuously to the advancement of the objectives of Christ's Church of the Golden Rule.’ (Emphasis mine.)

The Board also did not find that appellants are not ‘in need’. Instead it found inferentially that they are ‘in need’. Finding V reads (in part):

‘That to the extent that any of the appellants were in need within the meaning of the Old Age Security Law, they were so as a result of a continuing voluntary acceptance of lower standards of living in accordance with their adherence to the precepts' of their church. (Emphasis mine.)

On the findings as made the question is squarely presented whether the measure of need under the Old Age Security Law is the amount which the needy person is voluntarily willing to use for his needs if he elects to live in a substandard manner or the measure fixed by section 2020, Welfare and Institutions Code (as amended by sec. 2020.001 temporarily increasing the allowance from $75 to $80 per month). Section 2020 provides:

‘The amount of aid to which any applicant shall be entitled shall be, when added to the income * * * of the applicant from all other sources, seventy-five dollars ($75) per month.’ In its second sentence the section provides for a greater allowance if ‘in any case it is found the actual need of an applicant exceeds seventy-five ($75) per month’.

The legislature itself has thus determined that $75 (presently $80) per month is the minimum amount of income which will properly meet the needs of an aged person entitled to the old age pension.

Section 2160, Welfare and Institutions Code provides expressly and in mandatory language: ‘Aid shall be granted under this chapter to any person who comes within all of the following descriptions'. The respondent admits in its brief: ‘Appellants all had the basic age and residence qualifications for payments under the Old Age Security Law.’ That meets subdivisions (a), (b), (c) and (d) of section 2160. Subd. (e) excludes the inmates of certain institutions. It is not claimed that appellants fall within this class. Subd. (f) excludes those adequately supported by certain close relatives and does not apply to appellants. Subd. (g) excludes those who have made ‘any voluntary assignment or transfer of property for the purpose of qualifying for such aid.’ It is not claimed that appellants have done this.

There is no finding of the income that the community as a whole realizes. If the evidence showed that the community income was great enough to permit the payment by the community to each member of the full amount per month as fixed by the statute it may be that appellants under sections 2020 and 2020.001 would not be entitled to any pension, and that the amount of the pension should be reduced by whatever lesser amount the income of the community would enable it to pay. On that question I express no opinion since it is not presented on this record. Certainly in the absence of such a finding appellants meet the tests laid down by the legislature and under its plain mandate: ‘Aid shall be granted under this chapter’ to them, whether or not they belong to ‘a tribe of Indians' or what we might consider its equivalent, or prefer to live in a religious community rather than a boarding home.

The constitutional question of the claimed gift of public money is answered by Los Angeles County v. La Fuente, 20 Cal.2d 870, 875, 129 P.2d 378, 381, where the Supreme Court held that ‘the ‘need’ of the applicant necessary to qualify for the benefits of the law is defined by the Legislature * * *.' Appellants meet this definition and in my opinion are entitled to the benefits which the statute clearly gives them.

It cannot be claimed that $75 (or $80) per month is an unreasonable amount to be allowed to all applicants who qualify for the pension and hence the legislative determination meets the constitutional test. The individual recipients of the pension are allowed a freedom in its expenditure compatible with basic human dignity and the respondent itself has recognized in its Manual of Policies and Procedures, sec. A 140: ‘No provision of the O. A. S. Law requires or purports to require that income received by any person, whether a recipient of aid or one who has been a recipient of aid, shall be expended by that person for particular purposes or in particular amounts.’

Once the authorities begin to police the manner in which the recipients of Old Age Pension shall spend their income, and that is what they are attempting here, there is no limit to their possible inquiries: Shall A be allowed to give $10 a month to Korean relief or should his pension be reduced $10 per month because he persists in doing so? Shall B be allowed to keep a dog which eats $5 worth of meat per month or C permitted to contribute $1 per week when the collection box is passed during church services on Sunday? Better restore the poor house, with all of its indignities, than to add to the new system some of the indignities of the police state.

NOURSE, Presiding Justice.

KAUFMAN, J., concurs.

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