ROSS v. WOODS

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Court of Appeal, Third District, California.

Leonard ROSS et al., Petitioners, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF SACRAMENTO, Respondent; Marion J. WOODS et al., Real Parties in Interest.

Civ. 15804.

Decided: August 16, 1976

Baird B. McKnight, Plumas County Counsel, Quincy, and Downey, Brand, Seymour & Rohwer, by Stephen F. Boutin, Sacramento, for petitioners. Evelle J. Younger, Atty. Gen., John J. Klee, Jr., John Fourt, Deputy Attys. Gen., for respondent. David F. Chavkin, J. Kendrick Kresse, David J. Rapport, San Francisco Neighborhood Legal Assistance Fdtn., San Francisco, for Cooper, etc. Dan V. Blackstock, Butte County Counsel, Oroville, amicus curiae.

This is a proceeding in certiorari to review an order made in a contempt proceeding arising out of alleged violations of an injunctive decree previously made in a civil action.

The civil action was brought in respondent court by Laura Cooper (one of the real parties in interest herein), as the named plaintiff in a class action brought against Mario Obledo, Secretary of the Health and Welfare Agency, and Jerry Prod, then Director of the Department of Benefit Payments of the State of California. Petitioners, who constitute the Board of Supervisors of Plumas County, were not parties to the action and did not participate in the proceedings or have any knowledge of them; they did not become aware of the court decree until time for appeal had expired.

Two State Department of Social Welfare regulations, 44–115.95 and 44–115.8, had been previously invalidated by the California Supreme Court. In California Welfare Rights Organization v. Brian (1974) 11 Cal.3d 237, 113 Cal.Rptr. 154, 520 P.2d 970, 44–115.95, which considered the body of the mother of an unborn child to be a resource of the fetus resulting in a deduction of the economic value of the resource from the assistance grant payable to the pregnant woman, was invalidated; and in Cooper v. Swoap (1974) 11 Cal.3d 856, 115 Cal.Rptr. 1, 524 P.2d 97, 44–115.8 was struck down. The latter regulation considered as ‘in-kind income’ the noncash economic benefit a recipient of aid to families with dependent children receives when sharing housing with a recipient of aid under California Adult Aid Programs. The judgment in the underlying civil action provides in part:

‘5. The defendants, their successors in office, agents and employees, are hereby permanently enjoined from enforcing EAS §§ 44–115.8, 44–115.9, and 44–115.95 to reduce the AFDC grants otherwise payable to eligible recipients by computing income in kind.

‘6. The defendants, their successors in office, agents and employees will restore to plaintiffs and the class they represent the AFDC benefits unlawfully withheld pursuant to EAS §§ 44–115.8, 44–115.9, and 44–115.95 through the following procedure:

‘a. . . . County welfare departments will redetermine AFDC eligibility and make restitution of grant amounts unlawfully withheld within 60 days of the application for redetermination.

‘. . .

‘d. Within 60 days after entry of this judgment, or as soon thereafter as administratively possible, the Department of Benefit Payments will notify all county welfare departments of the terms of this Judgment and the rights of claimants, and will instruct the counties to aid and assist claimants in obtaining restitution as appropriate . . ..’

The Department of Benefit Payments sent an ‘all-county letter’ to each county welfare director to which was attached a copy of the respondent court's judgment. The letter ordered the counties to compute and pay the described retroactive welfare grants. The Plumas County Welfare Director received the letter and thereafter advised petitioner Ross of its content and explained its effect. Ross at that time replied, “No way can we go for something like that.” Subsequently, petitiones met as a board of supervisors in Quincy; the welfare director appeared with the all-county letter and a copy of the judgment. She informed the board of the contents and effect of both. The director was instructed not to make the retroactive payments and the board minutes reflect that it adopted the following motion: ‘. . . that Plumas County not comply with the court order, as this would be an unanticipated expense for which no county funds are available.’

The Director of Benefit Payments (real party in interest Marion Woods, successor to Jerry Prod) advised petitioners as a board of supervisors by telegram that if the decision was not rescinded, he would seek a contempt order. That telegram was received and read at a meeting of the petitioners. Petitioners voted to notify Woods, ‘. . . that the Plumas County Board of Supervisors does not intend to rescind its decision not to comply with the court order.’

Thereafter, real party in interest Woods filed a motion in respondent court asking that petitioners be held in contempt for disobedience of the judgment. The court found petitioners guilty and imposed a fine of $500 on each of them. This court stayed execution of the sentences pending this review.

Petitioners contend: (1) that respondent court exceeded its jurisdiction by employing an incorrect standard of proof; (2) that petitioners were not ‘agents' of real party in interest Woods in the underlying civil action; (3) that real party in interest Woods failed to exhaust the available administrative procedures prior to his seeking legal sanctions; and (4) that the United States Supreme Court case of Burns v. Alcala (1975) 420 U.S. 575, 95 S.Ct. 1180, 43 L.Ed.2d 469, renders the decision in the underlying civil action (Cooper v. Obledo) void.

I

Certiorari lies to review and annul a contempt order rendered without or in excess of jurisdiction. Such proceeding may review both the contempt proceeding and the judgment or order upon which the contempt is predicated. (5 Witkin, Cal.Procedure (2d ed.1971) Extraordinary Writs, § 25, p. 3799; 2 Witkin, Cal.Procedure (2d ed.1970) Provisional Remedies, § 111, p. 1540.)

Contempt of court is a specific criminal offense. A proceeding in contempt is not a civil action, either at law or in equity, but is a separate proceeding of a criminal nature and summary character in which the court exercises but a limited jurisdiction. (Hotaling v. Superior Court (1923) 191 Cal. 501, 504–505, 217 P. 73.) The proceeding is of such a distinctly criminal nature that a mere preponderance of the evidence is insufficient to sustain a finding of contempt. The acts of contempt must be proved beyond a reasonable doubt. (Hotaling v. Superior Court, supra, 191 Cal. 501, 217 P. 73; Quezada v. Superior Court (1959) 171 Cal.App.2d 528, 529, 340 P.2d 1018; Gibson v. Gibson (1971) 15 Cal.App.3d 943, 948, 93 Cal.Rptr. 617.)

In a proceeding such as this for constructive contempt,1 the affidavits of the affected parties constitute the pleadings and frame the issues to be tried. (Freeman v. Superior Court (1955) 44 Cal.2d 533, 536, 282 P.2d 857; Gibson v. Gibson, supra, 15 Cal.App.3d 943, 948, 93 Cal.Rptr. 617; In re Blaze (1969) 271 Cal.App.2d 210, 76 Cal.Rptr. 551; In re Circosta (1963) 219 Cal.App.2d 777, 33 Cal.Rptr. 514; Martin v. Superior Court (1962) 199 Cal.App.2d 730, 18 Cal.Rptr. 773.)

The power of the courts to punish for contempt has been regulated by statute since 1851. Section 1218 of the Code of Civil Procedure provides that a fine may be imposed on one guilty of contempt not exceeding $500, or he may be imprisoned for not exceeding five days, or both. Section 1219 authorizes imprisonment as a coercive measure where the contempt consists of a refusal to perform an ordered act. Because of this power to imprison, it is now established that a contempt hearing must comport with due process. The attributes of due process to which petitioners are entitled include application of the reasonable doubt standard of proof. (Freeman v. Superior Court, supra, 44 Cal.2d 533, 282 P.2d 857; In re Burns (1958) 161 Cal.App.2d 137, 326 P.2d 617.) Additionally, contempt proceedings must be strictly construed and any uncertainties or ambiguities must be resolved in favor of the accused. (In re Liu (1969) 273 Cal.App.2d 135, 78 Cal.Rptr. 85.)

Applying the foregoing principles, we may not presume the trial court utilized the reasonable doubt standard in arriving at its conclusion. That fact must affirmatively appear from the record. (In re Arthur N. (1976) 16 Cal.3d 226, 234, 127 Cal.Rptr. 641, 545 P.2d 1345.)

The record presented fails to disclose the standard applied. However, counsel for the parties have submitted their declarations concerning the standard of proof used. Petitioners declare the trial judge in an unreported conference in chambers declared the proceedings to be a ‘civil matter, although of a quasi-criminal nature.’ Court and counsel discussed the nature of the proceeding and the standard of proof; the court concluded that the civil standard of proof, preponderance of the evidence, would be applied.

Counsel for real party in interest does not directly refute the declaration of petitioners' attorney. He does allege, ‘to the best of his memory . . . the question of the trial court burden of proof was discussed . . . Judge Shreck stated . . . he was prepared to find the petitioners guilty of contempt under either the ‘beyond a reasonable doubt’ or the ‘preponderance of the evidence’ burden of proof rule . . .' (Emphasis added.) At best, the rebuttal is equivocal. Real party in interest Woods argues from this that it may reasonably be inferred that the proper standard was applied. Presumptions of validity may not be indulged in support of judgments in contempt as contrasted with a review of judgments in civil actions by appeal. (Freeman v. Superior Court, supra, 44 Cal.2d 533, 282 P.2d 857; Bailey v. Superior Court (1956) 142 Cal.App.2d 47, 297 P.2d 795.)

The record does not affirmatively reflect application by the court of the reasonable doubt standard, and since it is the primary responsibility of the trial judge to properly weigh the evidence in the first instance, we need not decide, therefore, whether the evidence is sufficient under this test. The order adjudging petitioners to be in contempt must be reversed.

Although not necessary to the disposition of the petition, we nonetheless deem two of petitioners' remaining contentions sufficiently substantial to warrant review.

II

The motion and declaration of real party in interest Woods, asking that petitioners be adjudged in contempt, alleged in part, ‘. . . that the respondent Board of Supervisors, and respondent board members Larry Dean, Russell Papenhausen, Joe W. Crivello, Ole Olsen and Leonard Ross are the statutory agents of petitioner for the administration of the State's AFDC program by virtue of the provisions of Welfare and Institutions Code section 10800; that said respondents are agents of petitioner within the terms of the mandatory judgment entered in this cause; . . .’

Welfare and Institutions Code section 10800 provides, ‘Subject to the provisions of Section 11050 and Chapter 3 (commencing with Section 12000) of Part 3, the administration of public social services in each of the several counties of the state is hereby declared to be a county function and responsibility and therefore rests upon the boards of supervisors in the respective counties pursuant to the applicable laws, and in the case of public social services for which federal or state funds are provided, subject to the regulations of the department.

‘For the purpose of providing for and carrying out this function and responsibility, the board of supervisors of each county, or other agency as may be otherwise provided by county charter, shall establish a county department, unless otherwise provided by the county charter. Except as provided herein, the county department shall be the county agency for the administration of public social services and for the promotion of public understanding of the public social services provided under this code and the problems with which they deal.’

Woods argues that the obligation to administer public social programs (Welf. & Inst.Code, § 10800) makes the petitioners his agents and as such, unnamed parties to the underlying civil action subject to the contempt powers of the court for noncompliance with the judgment.

Had petitioners been named participants in the underlying action, they would be subject to the court's power to impose sanctions for any refusal to obey the orders of the court; and if a true general agency existed at the time of the court's decision in the class action, any violation of that decision could be considered a constructive contempt on the part of the agent (petitioners), as well as the principal (Woods). (Freeman v. Superior Court, supra, 44 Cal.2d 533, 282 P.2d 857.) That principals may be held in contempt for the acts of their agents has been clearly established. (See Bailey v. Superior Court, supra, 142 Cal.App.2d 47, 297 P.2d 795; Freeman v. Superior Court, supra, 44 Cal.2d 533, 282 P.2d 857.)

Petitioners as members of the Board of Supervisors of Plumas County, however, may not be considered general agents of the State of California or for any of its appointed or elected offices, by virtue of the delegation of duty granted by the Welfare and Institutions Code section 10800. In limited instances, a special agency2 may exist by virtue of specific legislation. Such is the present case. Welfare and Institutions Code section 10800 delegates to all counties the obligation to administer public and social services and for that limited purpose, the counties act within a special agency relation to the state. (City and County of San Francisco v. Superior Court (1976) 57 Cal.App.3d 44, 49, 128 Cal.Rptr. 712.) That limited area of administration may not be considered as creating a general agency between the Department of Benefit Payments, its director, and the various counties by which each county becomes a party to all court proceedings instituted against the department and the director. The limited agency created by Welfare and Institutions Code section 10800 does not suffice to subject petitioners here to the contempt proceedings arising out of an underlying civil action to which they were not named parties.

III

Petitioners contend that real party in interest Woods failed to follow a mandatory administrative procedure before seeking court-imposed sanctions.

Welfare and Institutions Code section 10605 provides in pertinent part: ‘If the director considers a county director to be failing, in a substantial manner, to comply with any provision of this code or any regulation, . . . the director shall put the county director on written notice to that effect, and shall give a copy of the notice to the board of supervisors.

‘If within 60 days the county director fails to give reasonable assurance that he is complying and will continue to comply with the laws and regulations, the director shall order the county to appear at a hearing, before the director, with the State Benefits and Services Advisory Board, to show cause why the director should not take action to secure compliance. The county shall be given at least 30 days' notice of such hearing. The director shall consider the case on the record established at the hearing, and the advice of the State Benefits and Services Advisory Board, and, within 30 days, shall render proposed findings and a proposed decision on the issues. The proposed findings and decision shall be submitted to the county, and the county shall have an opportunity to appear within 10 days at such time and place as may be fixed by the director, for the purpose of presenting oral arguments. . . .

‘If the director determines that there is a failure on the part of the county to comply . . . the director may invoke any of the following sanctions:

‘. . .

‘(c) Bring an action in mandamus. . . .’ (Emphasis added.)

It is significant that the section in each instance utilizes the word ‘shall.’ ‘Shall’ has a compulsory and mandatory meaning. (Welf. & Inst.Code, § 15; People v. Municipal Court (1956) 145 Cal.App.2d 767, 775, 303 P.2d 375; Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 634, 12 Cal.Rptr. 671, 361 P.2d 247; County of Sacramento v. Superior Court (1971) 20 Cal.App.3d 469, 472, 97 Cal.Rptr. 771.)

It is a prime rule of statutory construction that the legislative intent underlying the statute must be ascertained from its language. If the language is clear, there can be no room for interpretation and effect must be given to its plain meaning. (Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 344, 353, 139 P.2d 908; Skivers v. State of California (1970) 13 Cal.App.3d 652, 655, 91 Cal.Rptr. 707; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) An intent that fails to find expression in the words of the statute cannot be found to exist. The courts may not speculate that the Legislature meant something other than what it said. Nor may they rewrite a statute to make it express an intention not expressed therein. We may not expand the clear language of the statute nor may we detract from its unambiguous mandate. (45 Cal.Jur.2d (1958) Statutes, § 128, p. 636.) The clear language of the statute compels the conclusion that the director (Woods) must first pursue the administrative process established by section 10605 before resorting to other remedies. Under the circumstances presented, Woods failed to do so by attempting to assert a general agency of county boards of supervisors to the Department of Benefit Payments, making them parties, whether named or not, to every legal proceeding involving public social service programs administered by the counties to which the department is a party. Such agency cannot exist nor is it available to evade the clear mandate of the statute.

We conclude that the legislative intent underlying the procedural requirements prescribed by section 10605 is consistent with prior legislative and decisional concern with conservation of judicial resources. (See Cohn v. Bugas (1974) 42 Cal.App.3d 381, 385, 116 Cal.Rptr. 810.)

The order of contempt is reversed.

For the reasons set forth in this concurring opinion, I agree with the judgment of the majority annulling the judgments of contempt.

The most striking aspect of this case is the apparent assumption by the parties that the very nature of the petitioners' official capacity as members of a popularly elected representative body, of itself, provides no impediment to the exaction of penal contempt sanctions. Rather, the points in controversy follow the conventional lines of attack on a contempt judgment, in effect, disputing whether the procedural corners have been squarely turned. The petitioners never come to grips with a topical issue of more importance than any other raised by these proceedings—an issue crucial to the survival of constitutional democracy: the limits upon the use of judicial power to compel official action by members of a legislative body, in the instant case, to compel a favorable vote on the expenditure of tax money to implement a mandatory injunction. The implicit, facile assumption by the parties that a court has plenary authority in these circumstances to jail, if need be, the members of a board of supervisors is a melancholy reminder of the distance we have traveled on the road from representative democracy to judicial autocracy.

Just as war is too important to be left to the generals, some litigation (the instant being a perfect example) is too important for the choice of issues for appellate consideration to be left exclusively to the parties. I, therefore, regard as appropriate for consideration the propriety of contempt sanctions against elected legislative representatives to compel official action.

It is well established that a court has no power to compel or otherwise interfere with a legislative act (Cal.Const., art. III, § 3; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 70–71, 187 P.2d 686; California State Employees' Assn. v. State of California (1973) 32 Cal.App.3d 103, 108–109, 108 Cal.Rptr. 60; California State Employees' Assn. v. Flournoy (1973) 32 Cal.App.3d 219, 234–235, 108 Cal.Rptr. 251; City Council v. Superior Court (1960) 179 Cal.App.2d 389, 395, 3 Cal.Rptr. 796.) The mere fact, however, that boards of supervisors, like Congress and the state legislatures, exercise legislative power is not conclusive of the character of a supervisorial act. ‘It has been recognized from an early date in the history of the state that, in exercise of their functions under particular statutes ‘the board of supervisors is a special tribunal, with mixed powers, administrative, legislative and judicial,’ . . .' (Newsom v. Board of Supervisors (1928) 205 Cal. 262, 269, 270 P. 676, 679; see also Simpson v. Hite (1950) 36 Cal.2d 125, 133, 222 P.2d 225.) On matters of statewide concern, where legislative policy has been determined by the state, and the duty of implementing that policy confided to the boards of supervisors, the power so delegated is administrative in nature. (Simpson v. Hite, supra, 36 Cal.2d at pp. 129–130, 222 P.2d 225.)

The instant circumstances fairly illustrate the general rule just stated. The policies governing the provision of public funds for the relief of the needy and disadvantaged have been ordained by the legislative bodies in Washington and Sacramento. The role assigned by the Legislature to the boards of supervisors in relation to the laws enacted to achieve those policy objectives is administrative. (See Welf. & Inst. Code, § 10800.)

Unlike legislative acts, administrative functions of a board of supervisors are not immune from judicial processes and may be enjoined or mandated. (Glendale City Employees' Assn. v. City of Glendale (1975) 15 Cal.3d 328, 343–345, 124 Cal.Rptr. 513, 540 P.2d 609; Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 639, 12 Cal.Rptr. 671, 361 P.2d 247; Johnston v. Board of Supervisors, supra, 31 Cal.2d at pp. 74–80, 187 P.2d 686.) Moreover, willful disobedience of such a judgment may ultimately be subject to punishment by contempt. (See City of Vernon v. Superior Court (1952) 38 Cal.2d 509, 241 P.2d 243; City of Culver City v. Superior Court (1952) 38 Cal.2d 535, 241 P.2d 258.) Recognition of that fact, however, is not dispositive of this case. The question remains whether the court in the instant circumstances, although not trenching upon a function exclusively the province of a coordinate branch of government, should nonetheless have exercised the drastic and summary power of contempt to compel action by members of an elected, representative organ of local government. For the reasons which follow, it should not, in my view, have done so.

These contempt procedings are ancillary to a class action (Cooper v. Obledo) commenced in January 1975. The defendants were the Secretary of the California Health and Welfare Agency and his subordinate,, the Director of the Department of Benefit Payments. These petitioners were not parties to that action. That action, however, resulted in the judgment for disobedience of which these petitioners have been adjudged in contempt. The judgment in Cooper v. Obledo, entered July 28, 1975, order the defendants therein, ‘their successors in office, agents and employees' to restore retroactively to certain classes of welfare recipients benefits unlawfully withheld. The judgment was not appealed and became final on September 27, 1975. (Code Civ.Proc., § 904.1; rule 2, Cal.Rules of Court.)

On September 18, 1975, the Department of Benefit Payments sent a letter to every county welfare director within the state ordering the counties to pay retroactively the benefits wrongfully withheld and otherwise to comply with the judgment in Cooper v. Obledo, a copy of which was included with the letter. The letter was received by Mona Green, the Plumas County Welfare Director, on September 22 or 23, 1975. Within the two weeks immediately following its receipt, she discussed it with petitioner Ross, the chairman of the board of supervisors. The letter was brought before the full board on November 11, 1975.

Petitioners had no knowledge of the proceedings in Cooper v. Obledo until after the judgment had been entered and the time for appeal had expired. While it was pending, however, the board of supervisors commenced the process of adopting a budget for fiscal year 1975–1976 (see generally Gov. Code, §§ 29040–29093.) In May 1975, preliminary hearings were held on the budget proposals of the departments of county government. In the final budget—adopted in August 1975—the proposed budget of every county department was cut ‘To hold the tax rate.’ The proposed budget of the Welfare Department was reduced over 20 percent. At the time of trial of these contempt proceedings (January 23, 1976) there was insufficient money in that department's budget to comply with the judgment in Cooper v. Obledo and to meet other projected obligations for which the funds were committed.

The contingency appropriation for fiscal year 1975–1976—available to meet unforeseen expenditure requirements (Gov. Code, § 29002)—was reduced almost 50 percent from the amount budgeted the previous year. At the time of trial approximately $100,000 remained of that appropriation; of that sum approximately $36,000 was needed to make up projected deficits in the budgets for county Medi-Cal costs and other welfare programs; other substantial claims upon the contingency appropriation of an emergency nature were reasonably contemplated by the county.

The duty of the board of supervisors in respect to the contingency appropriation, as understood by its chairman, petitioner Ross, is disclosed in his testimony: ‘[T]he [supervisors] would be remiss in their duties as elected officials, if [they] took money out of the contingency fund that is set up out of the taxpayers' general fund dollars for an emergency, if you just put it in there and used it to draw on. No, we can't take it out for anything.’ Ross was then asked: ‘You have to exercise your judgment as you go along?’ His reply: ‘That's correct. That's one reason it takes a four-fifths vote to get it out of there.’ (See Gov.Code, § 29127.)

At the board meeting of November 11, 1975, four of the petitioners (petitioner Olsen was absent) unanimously approved a motion that Plumas County ‘not comply with the court order, as this would be an unanticipated expense for which no county funds are available.’ The proceedings culminating in the foregoing action of the board are described in the minutes of that meeting: ‘Welfare Director Mona Green reviews the ‘Cooper v. Obledo’ decision, which would require counties to review all cases of persons receiving aid under certain programs, and make adjustments retroactively to 1971; and giving direction on ways to make the information available to recipients. Board members expressed concern at the possibility of using taxpayers money, which is not available, to comply with a court decision that does not involve Plumas County, who [sic] is not a party to the action; and who [sic] had no opportunity to argue nor appeal the decision.'

Reaction by the state executive branch was not long in coming. On November 18, 1975, real party in interest herein, Marion J. Woods (‘Woods'), Director of the Department of Benefit Payments, by telegram advised the supervisors: ‘The policy of this administration is to carry out court orders even when we do not agree with them. Based on this policy, unless you act before 5 PM, Thursday, November 20 1975 to rescind action taken last week not to impliment [sic] order in Cooper decision, I intend to seek an order holding you in contempt of court. Please advise your intention.’

The Woods' telegram was discussed and considered by the board at its meeting November 18, 1975. Four of the petitioners (petitioner Ross was absent) unanimously approved a motion to notify Woods that the board ‘does not intend to rescind its decision not to comply with the court order.’

On December 3, 1975, Woods filed in respondent Sacramento Superior Court his declaration in support of an order to show cause why the petitioners should not be found in contempt for willful disobedience of the judgment in Cooper v. Obledo. The declaration alleged that the County of Plumas had funds available to pay its share of the costs of implementing the judgment and charged the afore described conduct of petitioners (acting as supervisors at the meetings of November 11 and 18) as willfully disobedient of the judgment in Cooper v. Obledo.

At the heart of the petitioners' resistance to the judgment in Cooper v. Obledo is the concern that Plumas County, petitioners' constituency, was denied any opportunity to be heard in regard to the issues there determined. The resolution of those issues resulted in a judgment that has a potential impact on the amount of taxes necessary to be levied upon the property owners of Plumas County by their elected representatives, these very petitioners. (See Gov. Code, §§ 29100, 29101.) The real party in interest contends the county expenditures that are required to comply with the judgment in Cooper v. Obledo are mandated by the state. Even so, they are a charge upon the county, and payment thereof results in diminution of a finite sum (the county budget), the appropriation of which involves the exercise of legislative judgment and responsiveness to the concerns of voters from whose taxes it is funded. The relative portion of the total budget required to meet mandated expenditures undoubtedly influences the lawmakers' judgment in the determination of that part which is subject to their discretion and is therefore reflective of their policy choices.

Ironically, during the very time that the issue of additional mandated county expenditures was being litigated without petitioners' participation or knowledge, petitioners, as supervisors of Plumas County, were busy with the development and approval of a budget. In that process, they cut back on funds requested by the county departments in order ‘to hold the tax rate.’ The cited reason undoubtedly reflected a policy choice which petitioners believed to be responsive to the wishes of the electorate. Shortly after this display of parsimony, petitioners were told that a totally unanticipated expenditure now occupied first priority claim upon county funds by virtue of a judgment rendered by a court in Sacramento.

Whatever the source of the county funds utilized to meet this obligation, their application for that purpose will inevitably impinge upon the availability of funds for other uses and quite possibly also upon the county tax rate. Thus the provision of funds to comply with the judgment in Cooper v. Obledo, even though mandated by the state, is not by any means insulated from the prudence and sound discretion demanded of political officials, and the public pressures exerted upon them, in matters affecting the voters' pocketbooks. An excerpt from the proceedings before the board on November 18, 1975, trenchantly expresses the petitioners' delemma: ‘. . . we have to get the money from our county taxpayers. This Board will have to politically bear the claim for what ever happens and we do not have one thing one bit of control over the law suit . . ..’

If, as I believe, it is unlikely that petitioners were cognizant of the obscure delineation between their legislative and administrative functions, it is even more unlikely that their constituents had any understanding at all of these concepts or their significance. Thus, it must come as a shock to those among them who look to their supervisors ‘to hold the tax rate’ to learn that in matters directly affecting the amount they are taxed, the judgment of their elected representatives may be supplanted by a court decree rendered in an action of which they had no notice and in which they had no opportunity to participate. Such a revelation cannot but have a deleterious effect upon public confidence in a system which purports to give a voice in such matters to citizens at the lowest level of government through elected supervisors acting in public session to determine fiscal policy. (See Gov.Code, §§ 29060–29093.)

If public confidence in our system of representative government is a value worthy of preservation and enhancement, then the judicial branch must be sensitive to the unique role fulfilled by local legislative bodies. Those bodies exercise an amalgam of powers—legislative, administrative and judicial—each one different in character, quality and consequences. That is not to say, however, that a single act is in all cases readily susceptible of classification. It may partake of the character of more than one power. Conversely, it may be dependent for its efficacy solely upon a single power, yet impinge upon areas subject to the exercise of another power. The instant case typifies the latter situation. The necessity to provide funds to pay the county's share of a state-mandated program inevitably implicates other powers of the board not properly categorized as administrative. As stated in Myers v. English (1858) 9 Cal. 341, ‘[t]he power to collect and appropriate the revenue of the State is one peculiarly within the discretion of the Legislature. It is a very delicate and responsible trust, and if not used properly by the Legislature at one session, the people will be certain to send to the next more discreet and faithful servants.’ (P. 349.) The foregoing observation was made in reference to the state Legislature, which enjoys a status in the pantheon of separate and equal branches of government superior to that accorded a board of supervisors. Nonetheless, the power to collect and appropriate revenues is a trust no less delicate and responsible because it is exercised on the county, rather than on the state level.

Here, the petitioners were presented by the trial court with the Hobson's choice of defying the will of the people who elected them or suffering the imposition of penal sanctions. The petitioners chose the latter and are thus in the anomalous predicament of suffering individual punishment for the official exercise of judgment according to what they believe to be the collective will of the people whom they represent. A sensitive regard for these realities counsels judicial restraint and abstention from the exercise of the power of contempt except as a last resort.

The proper objective of these proceedings is not to jail or fine the petitioners as an end in itself, nor to vindicate either executive prerogatives, real or imagined, or judicial power. The entire purpose here is to implement the judgment in Cooper v. Obledo. That purpose can be achieved without the threatened specter of an elected legislative body in handcuffs and chains.

The solution to this impasse may be found in section 10605 of the Welfare and Institutions Code which is set out in its entirety in the margin.1 The remedial scheme there provided evinces a legislative sensitivity to the legitimate concerns of local taxpayers and their elected representatives. Moreover, section 10605 provides a means by which those concerns can be heard and considered, thereby recognizing, respecting and furthering values fundamental to a representative form of government such as ours.

Contrary to petitioners' contention, section 10605 of the Welfare and Institutions Code does not provide an administrative remedy the exhaustion of which is a condition to judicial jurisdiction over contempt proceedings (cf. Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 109 P.2d 942; 2 Witkin, Cal.Procedure (2d ed. 1970) Actions, §§ 181–186, pp. 1045–1048). The statute governing contempt proceedings is self-contained, comprehensive and complete (Code Civ.Proc., §§ 1209–1222). It does not provide an administrative remedy for contempt. Accordingly, the doctrine of exhaustion of administrative remedies has no application here.

However, section 10605 of the Welfare and Institutions Code does provide a remedy short of contempt which can accomplish the same result without at the same time disrupting the delicate balance organically established among coordinate branches of government. The very existence of the remedy counsels judicial restraint in the application of more stringent measures.

Judicial abstention from resort to contempt is not without precedent in comparable circumstances. (Housing Authority v. City of Los Angeles (1953) 40 Cal.2d 682, 256 P.2d 4; see also Glendale City Employees' Assn. v. City of Glendale, supra, 15 Cal.3d at pp. 348–350, 124 Cal.Rptr. 513, 540 P.2d 609, Mosk, J., dissenting.) Up to the present time, such isolated instances of abstention have not evolved into a rule of judicial self-restraint binding on the lower courts. Notwithstanding, where, as here, the power of contempt directed to administrative functions of a coordinate branch of government impacts tangentially upon powers within its exclusive domain, a court must stay the heavy hand of contempt until other means to secure the same result have been given a fair opportunity to succeed. In failing to do so, the trial court exceeded its jurisdiction, requiring that the judgments of contempt be annulled.

FOOTNOTES

1.  Contempts are classified as either direct or as indirect or constructive. A direct contempt is one committed in the immediate view and presence of the court; a constructive contempt is one committed out of the presence of the court. (14 Cal.Jur.3d (1974) Contempt, § 3, p. 9.)

2.  Civil Code section 2297 provides: ‘An agent for a particular act or transaction is called a special agent. All others are general agents.’

1.  Section 10605 provides: ‘If the director considers a county director to be failing, in a substantial manner, to comply with any provision of this code or any regulation, pertaining to the administration of aid, the director shall put the county director on written notice to that effect, and shall give a copy of the notice to the board of supervisors.‘If within 60 days the county director fails to give reasonable assurance that he is complying and will continue to comply with the laws and regulations, the director shall order the county to appear at a hearing, before the director, with the State Benefits and Services Advisory Board, to show cause why the director should not take action to secure compliance. The county shall be given at least 30 days' notice of such hearing. The director shall consider the case on the record established at the hearing, and the advice of the State Benefits and Services Advisory Board, and, within 30 days, shall render proposed findings and a proposed decision on the issues. The proposed findings and decision shall be submitted to the county, and the county shall have an opportunity to appear within 10 days at such time and place as may be fixed by the director, for the purpose of presenting oral arguments respecting the proposed findings and decision. Thereupon the director shall make his final findings and decision.‘If the director determines that there is a failure on the part of the county to comply with the provisions of this code or the established regulations, or if the State Personnel Board certifies to the director that a county is not in conformity with established merit system standards under Part 2.5 (commencing with Section 19800) of Division 5 of Title 2 of the Government Code, and that administrative sanctions are necessary to secure compliance, the director may invoke any of the following sanctions:‘(a) Withhold part or all of state and federal funds from such county until the county shall make a showing to the director of compliance; or‘(b) Assume, temporarily, direct responsibility for the administration of any or all state-assisted aid programs in such county until the county shall provide reasonable assurance to the director of its intention and ability to comply with such laws and regulations. During such period of state administrative responsibility for county programs, the director or his authorized representative shall have all of the powers and responsibilities of the county director, with the exception that he shall not be subject to the authority of the board of supervisors; or‘(c) Bring an action in mandamus or such other action in court as may be appropriate to compel compliance. Any such action shall be entitled to a preference in setting a date for a hearing.‘Nothing in this section shall be construed as relieving the board of supervisors of the responsibility to provide funds necessary for the continued aid required by law.‘Nothing contained in this section shall be construed as preventing a county from seeking judicial review of action taken by the secretary pursuant to this section under Section 1094.5 of the Code of Civil Procedure or, except in cases arising under Sections 10962 and 10963, from seeking injunctive relief when deemed appropriate.’

EVANS, Associate Justice.

REGAN, J., concurs.