Parrish v. Civil Service Commission of Alameda County

• Decision Date: 27 March 1967
• Docket Number: S.F. 22429
• Citation: 57 Cal.Rptr. 623,66 Cal.2d 260,425 P.2d 223
• Court: California Supreme Court
• Parties: , 425 P.2d 223 Benny Max PARRISH, Plaintiff and Appellant, v. The CIVIL SERVICE COMMISSION OF the COUNTY OF ALAMEDA, etc., et al.,Defendants and Respondents. In Bank

Page 623

57 Cal.Rptr. 623

66 Cal.2d 260, 425 P.2d 223

Benny Max PARRISH, Plaintiff and Appellant, v. The CIVIL SERVICE COMMISSION OF the COUNTY OF ALAMEDA, etc., et al.,Defendants and Respondents.

S.F. 22429.

Supreme Court of California,

In Bank.

March 27, 1967.

Albert M. Bendich, Berkeley, and Coleman A. Blease, Sacramento, for plaintiff and appellant.

Robert H. Laws, Jr., San Francisco, B. V. Yturbide, Marshall W. Krause and Ruth Jacobs, San Francisco, as amici curiae on behalf of plaintiff and appellant.

J. F. Coakley, Dist. Atty., and Richard H. Klippert, Asst. Dist. Atty., for defendants and respondents.

TOBRINER, Justice.

In the present case an Alameda County social worker, discharged for 'insubordination' for declining to participate in a mass morning raid upon the homes of the county's welfare recipients, seeks reinstatement with back pay on the ground that such participation would have involved him in multiple violations of rights secured by the federal and state Constitutions. He urges that his superiors could not properly direct him to participate in an illegal activity and that he could not, therefore, be dismissed for declining to follow such directions.

The county acknowledges that it has subsequently abandoned the method of mass morning raids to determine welfare eligibility and that such operations are now forbidden by the applicable state and federal For the reasons set forth in this opinion we have decided that the county's failure to secure legally effective consent to search the homes of welfare recipients rendered the mass raids unconstitutional. We have determined further that, even if effective consent had been obtained, the county could not constitutionally condition the continued receipt of welfare benefits upon the giving of such consent. We have therefore held, for these two independently sufficient reasons, that the project in which the county directed the plaintiff to take part transgressed constitutional limitations. In light of plaintiff's knowledge as to the scope and methods of the projected operation, we have concluded that he possessed adequate grounds for declining to participate.

                [425 P.2d 225] regulations. 1  Since these regulations were not in force at the time of the plaintiff's dismissal, [66 Cal.2d 263] however, we must determine whether he could properly refuse to participate in the welfare raids on the ground that they infringed rights of constitutional dimension
                

On November 21, 1962, the Board of Supervisors of Alameda County ordered the county welfare director to initiate a series of unannounced early-morning searches of the homes of the county's welfare recipients for the purpose of detecting the presence of 'unauthorized males.' ² The searches were to be modeled on a Kern County project popularly known as 'Operation Weekend.'

Neither in planning nor in executing the searches did the county authorities attempt to secure appropriate search warrants. The social workers who conducted the searches were not required or permitted to restrict them to the homes of persons whom they had probable cause to arrest, or even to the homes of those welfare recipients whose eligibility they had any reason to doubt. Indeed, as will later appear, the majority of persons whose homes were searched were under no suspicion whatever and were in fact subjected to the raid for that very reason.

The Alameda County searches, popularly and reportorially dubbed 'Operation Bedcheck,' commenced on Sunday, January 13, 1963, at 6:30 a.m. ³ Although the county welfare department contained a 10-man fraud unit whose members ordinarily investigated all cases of suspected fraud, that unit could not adequately staff an operation of the sweep contemplated by the supervisors. Accordingly, despite the fact that the county's social workers did not ordinarily conduct fraud investigations, their services were necessary for this undertaking.

Since the social workers lacked experience with the techniques employed by the fraud investigators they received special instruction in the procedures to be followed. Their superiors instructed them to work in pairs with one member covering the back door of each dwelling while the recipient's own social worker presented himself at the front door and sought admittance.

[425 P.2d 226] Once inside, he would proceed to the rear door and admit his companion. Together the two would conduct a thorough search of the entire dwelling, giving particular attention to beds, closets, bathrooms and other possible places of concealment.

Plaintiff was one of the social workers chosen to participate in the first wave of raids. Upon learning the nature of the proposed operation, he submitted a letter to his superior declaring that he could not participate because of his conviction that such searches were illegal. After plaintiff had explained his position to the division chief and the welfare director, he was discharged for insubordination.

'Insubordination can be rightfully predicated only upon a refusal to obey some order which a superior officer is entitled to give and entitled to have obeyed.' (Garvin v. Chambers (1924) 195 Cal. 212, 224, 232 P. 696, 701; Sheehan v. Board of Police Commrs. (1925) 197 Cal. 70, 78, 239 P. 844; Forstner v. City and County of San Francisco (1966) 243 A.C.A. 787, 794, 52 Cal.Rptr. 621.) Plaintiff contends that his superiors were not entitled to compel his participation in illegal searches and urges that such participation might have exposed him to severe penalties under federal law. ⁴

Accordingly we must determine, as the central issue in the present case, the constitutionality of the searches contemplated and undertaken in the course of the operation. By their timing and scope those searches pose constitutional questions relating both to the Fourth Amendment's stricture against unreasonable searches and to the penumbral right of privacy and repose recently vindicated by the United States Supreme Court in Griswold v. State of Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. ⁵

At the outset we must identify the standards which govern the constitutionality of such searches. Although misrepresentation of welfare eligibility constitutes a crime, by virtue both of special legislation directed to that evil (Welf. & Inst.Code, §§ 11265, 11482 (formerly §§ 1563, 1577)) and the general grand theft statutes (Pen.Code, §§ 484, 487; see People v. Bailey (1961) 55 Cal.2d 514, 516--518, 11 Cal.Rptr. 543, 360 P.2d 39; People v. Ryerson (1962) 199 Cal.App.2d 646, 649--650, 19 Cal.Rptr. 22), the county nevertheless contends that the searches undertaken in the course of the operation need not meet the standards ordinarily applied to searches for evidence of crime. It predicates this contention upon its claim that the searches were designed primarily to secure proof of welfare ineligibility so as to reduce the number of persons on welfare rather than to lay the basis for criminal prosecutions. ⁶

In evaluating the county's contention our principal recourse must be to the decision of the United States Supreme Court in Frank v. State of Maryland (1959) 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877, wherein the court countenanced a distinction between searches directed to the procurement of evidence of crime and searches aimed toward the advancement of the general welfare by means other than criminal prosecutions. ⁷ In that case the court upheld a Baltimore ordinance requiring the occupant of any premises to admit a city health inspector whenever the latter 'shall have cause to suspect that a nuisance exists * * * therein' and shall have 'demand(ed) entry therein in the day time * * *.' (359 U.S. at p. 361, 79 S.Ct. at p. 806.) Examination of the Frank opinion discloses four separate and independently sufficient factors which render its holding inapplicable to the case before us.

First, the evidence sought by the health inspector in the Frank case would not itself have afforded a basis for criminal prosecution. The Baltimore ordinance did not penalize the mere maintenance of a nuisance; it authorized the imposition of sanctions only when the health inspector had ascertained the existence of a nuisance and had issued an abatement order which the owner thereafter wilfully disobeyed.

Clearly mindful of this aspect of the Baltimore ordinance, the court repeatedly stressed the fact that discovery of a nuisance on the premises would not, without further culpable acts on Frank's part, have supported criminal prosecution. 'The attempted inspection * * *,' the court noted, 'was merely to ascertain the existence of evils to be corrected upon due notification or, in default of such correction, to be made the basis of punishment.' (359 U.S. at p. 362, 79 S.Ct. at p. 807; see also p. 366, 79 S.Ct. at p. 808.) In the present case, however, the evidence sought by the Alameda County authorities would have afforded a basis for prosecution without further action on their part or subsequent culpable conduct by the recipient.

Second, the Frank court drew a line between searches which advance the general welfare without recourse to criminal proceedings and 'searches for evidence to be used in criminal prosecutions Or for forfeitures.' (Italics added.) (359 U.S. at p. 365, 79 S.Ct. at p. 808.) Since the court thus declared that a search directed at securing evidence in aid of a forfeiture should be treated in the same manner as a search for evidence of crime, the Frank decision affords no support to the authorities of Alameda County who, by their own account, were seeking evidence of ineligibility for the express purpose of cancelling welfare benefits.

Third, the court emphasized the limited scope of the Baltimore ordinance in that it authorized searches only if the health commissioner had 'cause to suspect that a nuisance exists.' (See, e.g., 359 U.S. at p. 366, 79 S.Ct. at p. 809.) In this connection, the court noted that the inspector who sought...