CONCERNED CITIZENS COMMITTEE INTERESTED IN TEHAMA GENERAL HOSPITAL v. BOARD OF SUPERVISORS OF TEHAMA COUNTY

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Court of Appeal, Third District, California.

CONCERNED CITIZENS COMMITTEE INTERESTED IN the TEHAMA GENERAL HOSPITAL, an unincorporated association, and Helen M. Hickman, Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF TEHAMA COUNTY and the Individual members thereof, Defendants and Respondents.

Civ. 17168.

Decided: March 14, 1978

Michael R. Bush of Butte County Legal Services, Inc., Chico, and Shelley M. Mercer, Los Angeles, and John M. Fredenberg of National Health Law Program, Santa Monica, for plaintiffs and appellants. William O. Scott, Jr., Dist. Atty. of Tehama County, for defendants and respondents.

In March 1977, the Board of Supervisors of Tehama County conducted a noticed hearing (Health & Saf.Code, s 1442.5) on a proposal to curtail acute medical care services at Tehama General Hospital. Following that hearing a decision was made to terminate acute medical care at the facility and to contract for those services with other hospitals in the county. Plaintiffs, an unincorporated group of interested citizens and an individual, Helen Hickman, a resident of the county, filed a petition for writ of mandate (Code Civ.Proc., ss 1085, 1094.5) and a complaint for declaratory relief (Code Civ.Proc., s 1060), seeking to halt the proposed closure of “the acute care portion of the Tehama General Hospital”1 asserting that the board failed to comply with the procedures prescribed in Health and Safety Code section 1442.5.2

The trial court in denying the requested relief determined:

“1. Petitioners lack standing to seek declaratory relief.

“2. The Findings of Facts adopted by the Respondents to justify their decision to close the acute care facility at Tehama General Hospital are sufficient.

“3. The Findings of Fact and the decision of the Respondents is (sic ) supported by adequate evidence in the administrative record in that the findings and decision are not arbitrary, capricious or fraudulent and they were in accordance with the provisions of Health & Safety Code Sec. 1442.5.”

On appeal from the judgment plaintiffs contend:

1. The plaintiffs, an unincorporated association and an individual, all residents of Tehama County, have standing to seek relief through an action for declaratory relief and/or a petition for writ of mandamus.

2. The action taken by the board was quasi-judicial in nature and is subject to review pursuant to Code of Civil Procedure section 1094.5 as an administrative mandamus proceeding.

3. The findings made by the board are not sufficient to support its decision to close the acute medical care facility.

4. There is insufficient evidence to support the board's decision.

I

When an administrative or quasi-legislative act is challenged for lack of conformity, or that it is assertedly invalid by reason of lack of factual support, the person or persons presenting the challenge in a declaratory relief proceeding must be an interested person subject to the regulation or enactment, or affected by it. The dispute must directly touch the legal relations of the parties (Breiner v. City of Los Angeles (1971) 22 Cal.App.3d 382, 99 Cal.Rptr. 180; Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111; see also American Friends Service Committee v. Procunier (1973) 33 Cal.App.3d 252, 255, 109 Cal.Rptr. 22); however, if resolution of such an issue is sought in a mandamus proceeding as well, all that need be established is that plaintiffs are seeking to protect a specific legal right that is clear, present, certain, and substantial. (5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, s 62, p. 3840.) In American Friends Service Committee v. Procunier, supra, 33 Cal.App.3d at page 256, 109 Cal.Rptr. at page 25, the rule was succinctly restated by this court while citing Bd. of Soc. Welfare v. County of L. A. (1945) 27 Cal.2d 98, 100-101, 162 P.2d 627 to be, “ ‘ ”(W)here the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced.“ . . .’ ” (See also McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal.App.3d 436, 440, 111 Cal.Rptr. 637.)

A writ of mandate may issue to compel performance of an act which the law enjoins and the exercise of jurisdiction in mandamus rests to a considerable extent in the wise discretion of the court. (Wheelright v. County of Marin (1970) 2 Cal.3d 448, 457, 85 Cal.Rptr. 809, 467 P.2d 537.) “When the duty is sharp and the public need weighty, the courts will grant a mandamus at the behest of an applicant who shows no greater personal interest than that of a citizen who wants the law enforced. (Citations.) When the public need is less pointed, the courts hold the petitioner to a sharper showing of personal need. Decisions of the latter sort declare that the applicant's right to the writ must be ‘clear and certain.’ (Citations.)” (McDonald v. Stockton Met. Transit Dist., supra, 36 Cal.App.3d at p. 440, 111 Cal.Rptr. at p. 641.) In this proceeding the object sought in the mandamus proceeding was the enforcement of a public duty; as such the plaintiffs have standing merely as citizens seeking enforcement of a public obligation. It is questionable, however, whether their need is so clear and certain to afford them standing to pursue the declaratory relief action alone. (See Chas. L. Harney, Inc. v. Contractors' Bd. (1952) 39 Cal.2d 561, 564, 247 P.2d 913.)

II

Plaintiffs contend that the action taken by the board of supervisors was quasi-judicial in nature, not quasi-legislative, and therefore, subject to administrative mandamus (Code Civ.Proc., s 1094.5), requiring the court to exercise its independent judgment on the evidence. For the reasons hereafter stated, we conclude to the contrary and consider the mandamus to be a proceeding brought pursuant to Code of Civil Procedure section 1085.

In adopting the resolution to curtail medical care facilities pursuant to statutory authority (Health & Saf.Code, s 1442.5), the board of supervisors acted in a quasi-legislative capacity. (Malibu West Swimming Club v. Flournoy (1976) 60 Cal.App.3d 161, 164, 131 Cal.Rptr. 279.) A review of quasi-legislative or legislative actions through mandamus proceedings under Code of Civil Procedure section 1085 is the appropriate remedy. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29; Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 809, 114 Cal.Rptr. 577, 523 P.2d 617.) The administrative mandamus statute (Code Civ.Proc., s 1094.5) applies only to administrative adjudications, quasi-judicial in nature, not to municipal legislative actions. (Wilson v. Hidden Valley Mun. Water Dist. (1967) 256 Cal.App.2d 271, 277-278, 63 Cal.Rptr. 889.) In the former type of mandamus proceeding as contrasted with the administrative mandamus, the scope of trial court review requires only an examination into whether the action taken was arbitrary, capricious, or entirely lacking in evidentiary support, or, as in this instance, whether the board of supervisors failed to follow the procedures established by Health and Safety Code section 1442.5. (See Pitts v. Perluss (1962) 58 Cal.2d 824, 833, 27 Cal.Rptr. 19, 377 P.2d 83.) Our conclusion is buttressed by our determination that the board of supervisors, in adopting the resolution terminating medical care facilities at the Tehama General Hospital, was not performing an adjudicative function. Such proceedings imply an adversary type action between contending parties who are entitled to access to evidence and opportunities for cross-examination. In this instance the board's task was to ascertain whether or not the medical care facilities afforded county indigents could adequately and economically be served by contracting with private hospitals for the service. In making that determination, the board's function required it to receive and consider economic and social data as well as opinion and argument from members of the community interested in either maintaining or discontinuing the county hospital medical services. The function was thus quasi-legislative rather than adjudicative. The statutory obligation to conduct hearings, accept evidence, and to make findings creates characteristics shared by adjudicatory proceedings but does not render the function adjudicative in nature. (See Rivera v. Division of Industrial Welfare (1968) 265 Cal.App.2d 576, 586-587, 71 Cal.Rptr. 739.) The board of supervisors was not acting in a quasi-judicial capacity but was performing a legislative function subject only to traditional mandamus review.

III

We consider plaintiffs' remaining two contentions, in light of the constraints previously discussed, as a challenge to the sufficiency of the evidence presented to the board to support its decision.

Although the quality or quantum of notice as required by Health and Safety Code section 1442.5 was not challenged in the mandamus proceeding or in this appeal, the record does contain sufficient evidence of the county's compliance with the notice requirement of the statute.

Our reading of Health and Safety Code section 1442.5 reveals it to be unfortunately skimpy, inadequate, and apparently designed to facilitate the administrative agency's escape from realistic and humanitarian investigation. In ritualistic terms, the section authorizes a county board of supervisors to close county medical facilities after indulgence in the formulary recital that said closures “will not have a detrimental impact on the health care needs” of indigents.

Under more stringent statutory constraints, proceedings could be required to provide a series of subordinate hearings and require more precise and detailed findings be made by the board of supervisors, for example: to determine whether private hospitals in a county would admit indigent transients, indigent alcoholics, or acute psychiatric patients with equal facility as would a general county hospital; whether the same patients will get the quality of care provided, as in this instance, received at Tehama General Hospital; a determination of the size and location of the indigent population in order to ascertain whether the substituted facilities will be of a size and location and equipped to properly provide an undeteriorated level of medical care.

The language of the present statute does not require such proceedings or detailed findings.

The findings formulated by the board after receiving evidence on the question of closure do comply with the diffuse, generalized, and nonspecific demands of the present statute. Those findings contained in the form of the motion made to eliminate the acute care portion of the hospital (although inartfully articulated) provide as follows, “That acute care at Tehama General can properly be eliminated without doing damage to the county responsibility patients' care for several reasons. First, in light of contracts that are available to the county that cover the county's responsibility. Second, in light of current usage of other facilities that are available to us without said contracts. Third, in light of the fact that there are 26 counties in this State of California, that are properly discharging that service through contracts at this time.”

In support of those findings, the record reveals evidence that other hospitals will make available an adequate number of acute care beds to compensate for those eliminated at the general hospital. The evidence considered by the board was of sufficient substantiality, and was sufficiently credible, to support the board's determination on the question of closure of the acute care portion of Tehama General Hospital. On the basis of the language of the present statute and that state of the evidence, the board's decision may not be categorized as arbitrary, capricious, or without evidentiary support. Based upon the foregoing determination, the judicial review must cease.

The judgment is affirmed.

I dissent. We deal with an interpretation of Health and Safety Code section 1442.5 enacted in 1974. Its preamble summarizes the purpose of the legislation:

“The Legislature recognizes the importance of the health care provided by counties to indigent residents through county hospitals and health care facilities. It is the purpose and intent of the Legislature by this act to insure that the duty of counties to provide health care to indigents is properly and continuously fulfilled.” (Stats.1974, ch. 810, p. 1764.) We must interpret the statute to conform with that legislative intent the assurance that health care for indigents is fulfilled. A background is helpful for an understanding of the legislative purpose.

History of Medical Services to the Poor 1

The California scheme for providing medical attention to the indigent places on the counties the residual duty to guarantee health care to its residents. (Welf. & Inst.Code, s 17000.) Beginning in the 1880's the counties began to build and maintain county hospitals and county health care programs to meet their statutory obligations. (See “California Welfare Law Origins and Development” 45 Cal.L.Rev. 241 (1957); “Closing The Doors On The Poor, The Dismantling of California's County Hospitals, A Health PAC Report” by Elinor Blake and Thomas Bodenheimer (1975).) By 1904 most of California's 58 counties had established their own general hospitals. By that year the state had 59 county hospitals (some counties had more than one). Tehama County built such a facility and has maintained a health program for the indigent.

By the 1970's the trend had reversed. Many counties began to reassess the cost of providing medical services to the indigents and began to close down the facilities. By the 1950's all but nine thinly populated counties had established county hospitals. By the time this action was filed, 26 counties had no such facilities. The human tragedy and cost has been immeasurable:2

“The dismantling of county hospitals in California is having an enormous impact on low income people who have always relied heavily on these hospitals. In most cases, county governments ceasing to operate their hospitals have made few or no arrangements for the care of the hospitals' patients.

“. . . for

“The people hardest hit by the closure, sale or transfer of county hospitals are those without Medicare, Medi-Cal or private insurance, but nevertheless without sufficient means to afford private care. This uninsured group, which numbers 2.3 million in California (citation) has always been welcome at county hospitals regardless of ability to pay.” (“Closing The Doors On The Poor,” supra, at pp. 67-68.)

The issue of whether or not Tehama General Hospital would be closed was a matter of general political controversy in that county. A measure was placed on the general ballot for the November 1976 election on the issue of whether or not “ ‘acute, inpatient care’ ” should be terminated. Fifty-three percent of the voters voted in favor of the termination. The Tehama County Board of Supervisors proceeded to hold public hearings with the aim of carrying out that voters' mandate. The hearing was apparently viewed as a condition precedent to the predetermined course of action.

The view of the Board appears to be this: Since Welfare and Institutions Code section 17000 does not mandate the establishment of a county hospital the Board is free to terminate it (so long as it meets a certain unspecified minimum health care service). Apparently, it believed that: what the Board giveth the Board may take away.

What the Board Giveth the Board Taketh Away?

The Legislature stepped in in 1974 at a time when counties, particularly small rural counties, were closing their hospitals for fiscal reasons. The State Legislature enacted Health and Safety Code section 1442.5. It reads:

“Prior to closing a county facility, eliminating or reducing the level of services provided, or prior to the leasing, selling, or transfer of management, the board shall provide public notice, including notice posted at the entrance to all county health care facilities, of public hearings to be held by the board prior to their decision to proceed. Such notice shall be posted not less than 90 days prior to such public hearings.

“The board shall make findings based on these hearings that their proposed action will not have a detrimental impact on the health care needs of the indigents of the county. Such findings shall be included as part of the official public hearing record.”

It seems manifest that the Board may change the mode but not the benefit. That is, the Board is categorically in error when it argues in its brief that “(t) he board has the power to make the decision. It has made the decision, and the same is unassailable.”

Prior to a decision by the Board, Health and Safety Code section 1442.5 requires:

(1) A hearing must be held;

(2) Evidence must be received;

(3) The Board must make a decision on the evidence submitted and made a part of that record;

(4) The finding must be that the proposed action will not have a detrimental impact on the health care needs of the indigents in the county.

Health and Safety Code section 1442.5 gives flesh to Welfare and Institutions Code section 17000. It acknowledges the history of county hospitals in the state. The statute severely restricts the options of the Board. First, the Board may not enter into new arrangements if the net effect is to the detriment of indigents in the county. Second, the Board may not start with a base fixed to the services it was rendering before the 1970's. The statute is explicit. The county must continue to render the same quality of service as it is presently rendering with the county hospital facilities. Third, the hearing is the vehicle for the gathering of data and for the making of that decision.

I emphasize that this is not a political process. The State has not given the people of the county or the Board of Supervisors the option of reducing the services rendered the indigents. Nothing can be more clear the Board cannot take away that which it has already given.

Action by the Board of Supervisors

The Board of Supervisors noticed a meeting. The meeting was held. A generous characterization of the hearing is that it dealt with the possible alternatives in view of the Board's determination to close the hospital. Whether the hospital would be closed was not in question. Alternate means of providing for the health care of the poor were discussed the principal interest of the participants was in the fiscal factor. Nothing was presented regarding the comparability of alternatives to the existing health services for the poor. There was no effort to elicit information as to the impact on county indigents and as to whether or not the effect would be detrimental. Apparently, the hearings were viewed by the Board as a necessary step prior to closing the hospital and as a method of exploring alternative means of meeting the county's “responsibility.” The “responsibility,” though never explicitly articulated, was implicitly viewed as being at a far lesser level of service than that currently being provided by the county hospital.

At the conclusion of the administrative hearing the Board acted. The following resolution was made and approved by the Board: “. . . Mr. Chairman, I would move the findings as follows: That acute care at Tehama General Hospital can properly be eliminated without doing damage to county responsibility patients' care for several reasons. First, in light of contracts that are available to the county that cover the county's responsibility. Second, in light of current usage of other facilities that are available to us without said contracts. Third, in light of the fact that there are twenty-six counties in this State of California, that are properly discharging the service through contracts at this time. I believe that's enough reasons.” The above resolution and the hearing, as I discuss below, are incurably defective.

Board's Failure To Follow Legislative Mandate

The view is urged upon us that the threshold question deals with the scope of judicial review of this administrative proceeding. Respondents urge, and the majority agree, the scope of review is that dealing with quasi-legislative hearings. (Code Civ.Proc., s 1085.) The appellants argue, on the other hand, that the true nature of the hearing was quasi-judicial. Thus, they argue, the review procedures of Code of Civil Procedure section 1094.5 apply. The difference is important. If this is viewed as a legislative hearing then perhaps respondents are correct that they can do practically anything they want to. On the other hand, if the review is quasi-judicial then the courts will more readily interfere.

However, the distinction between quasi-legislative and quasi-judicial hearings is sometimes difficult to determine.3 (See Natural Resources Defense Council, Inc. v. California Coastal Zone Conservation Com. (1976) 57 Cal.App.3d 76, 129 Cal.Rptr. 57.) I suggest that the real question is this: What did the Legislative intend by the statute it enacted, Health and Safety Code section 1442.5? In view of the seriousness of the problem facing the county indigents and the then apparent determination of counties to close their hospitals for fiscal purposes I suggest that the Legislature meant what it said that the county could not close the county hospitals if it could not provide health services of a similar quality and nature. Further, the method used by the county to make that determination was restricted: the county must hold a hearing on the specific issue of whether closing the hospital will adversely affect the poor; it must find facts; get those facts on record; and make a determination entirely upon that record. We should not second-guess the Legislature.

It seems manifest that the Legislature also set the stage for judicial review whether we call the hearing quasi-legislative, quasi-judicial or quasi-legislative/judicial. The pigeon holes no longer apply. We must examine the legislation realistically and give it substance.

I briefly examine the deficiencies of each of the three findings of the Board. First, the Board found that contracts are available with other facilities which cover the county's responsibilities. I note that the emphasis is that the county's “responsibility” will be met. But “responsibility” is not defined nor is it tied to the legislative criteria. The issue which must be addressed is whether available contracts would cover the services to the poor at the present level of services. That level of services may be very different than the Board's view of its “responsibility.” Second, the Board found that there is current usage of other facilities without contract to care for some of the patients for which the county is responsible. Again, that there may be other facilities speaks not at all to the issue of whether or not the services will continue in at least the same level as before the closure of the hospital. That other facilities exist does not at all indicate their availability to county indigents. Third, the Board found that 26 other counties in the State have closed county hospitals and “discharged their obligations” through contracts or other means. It is precisely the fact that other counties had closed county hospitals with the tragic results which have been outlined that lead the State Legislature to enact protective legislation. That the other counties have, or that this county will, maintain the same level of services is not even addressed by this “finding.” In sum, the findings are totally defective in meeting the criteria set by the statute. The evidence adduced at the hearing was simply insufficient.

A board can structure a hearing and take evidence on the questions that must be answered in order to fulfill the legislative mandate. They include at least the following: Who are the indigents in the county whom the county must serve; how are they currently being serviced; will alternative facilities provide similar services; and will the poor have access to those programs. In a rural county, like Tehama, it is particularly important to focus on the community nature of the service and on the distances involved. It would be a travesty to provide “similar services” 50 or 100 miles distant from where the poor live.

The Board may complain that the legislative standard is a very difficult one to meet. The Board must establish what the level of services is (that is the standard), what alternatives exist, and whether the proposed services will not have a detrimental effect on health care needs of indigents (i. e., not be lower than the standard). It is true that the standard is difficult. That is precisely what the Legislature intended. It may not be possible for the Board to find that it can render an equal level of services and at the same time close the hospital. Further, it may not be able to save money. Of course, the Board must direct such policy arguments to the Legislature, not the courts.

I would reverse with directions to the superior court to enter judgment directing the Board of Supervisors to conduct a new hearing in conformity with Health and Safety Code section 1442.5 as herein interpreted.

FOOTNOTES

1.  The hospital had been licensed for 40 beds, classified as 16 acute medical-surgical beds, 8 acute psychiatric beds, and 16 skilled nursing beds.

2.  Health and Safety Code section 1442.5 provides in part: “Prior to closing a county facility, . . . the board shall provide public notice, including notice posted at the entrance to all county health care facilities, of public hearings to be held by the board prior to their decision to proceed. . . .“The board shall make findings based on these hearings that their proposed action will not have a detrimental impact on the health care needs of the indigents of the county. Such findings shall be included as part of the official public hearing record. . . .”

1.  This history is taken from the briefs and authorities cited therein. While the briefs go beyond the record I find the information they provide helpful for my understanding.

2.  Butte County, which abuts Tehama County, closed its facility in 1973, one year before the State Legislature passed the legislation we interpret. A vignette of human tragedy is reported:“One day in November, 1973, a destitute 68-year-old World War II veteran named Daniel Gibson was carried into the emergency room of the private Medical Center Hospital in Oroville. A short time later he was denied admission to the hospital and a taxi brought him back to a rock pile near his burned-out shed behind the railroad yards. Nineteen hours later Gibson was dead of pneumonia.“The incident caused a furor in Butte County since the county hospital had been closed two months earlier. Private providers of care had assured Butte officials that anyone who was ill or injured would be cared for.” (“Closing The Doors On The Poor,” supra, at p. 104.)

3.  In my view the quasi-judicial designation more closely approximates what the Legislature had in mind (see Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29; Natural Resources Defense Council, Inc. v. California Coastal Zone Conservation Com. (1976) 57 Cal.App.3d 76, 129 Cal.Rptr. 57). We need not reach the issue of whether appellants enjoy a fundamental vested right in health care and whether, because of that, judicial review is on an “independent judgment” basis.

EVANS, Acting Presiding Justice.

FRIEDMAN (Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council), J., concurs.