Eye Dog Foundation v. State Bd. of Guide Dogs for Blind

• Decision Date: 27 October 1967
• Citation: 67 Cal.2d 536,63 Cal.Rptr. 21,432 P.2d 717
• Court: California Supreme Court
• Parties: , 432 P.2d 717 EYE DOG FOUNDATION, Plaintiff and Appellant, v. STATE BOARD OF GUIDE DOGS FOR the BLIND et al., Defendants and Appellants. L.A. 28495.

Page 21

63 Cal.Rptr. 21

67 Cal.2d 536, 432 P.2d 717

EYE DOG FOUNDATION, Plaintiff and Appellant, v. STATE BOARD OF GUIDE DOGS FOR the BLIND et al., Defendants and Appellants.

L.A. 28495.

Supreme Court of California In Bank.

Oct. 27, 1967.

Thomas C. Lynch, Atty. Gen., and Mark Lanier, Deputy Atty. Gen., for defendants and appellants.

Wirin, Rissman, Okrand & Posner, Paul M. Posner and Edward Raiden, Los Angeles, for plaintiff and appellant.

BURKE, Justice.

Both parties appeal from portions of a judgment relating to the validity and enforceability of statutory provisions regulating the training and furnishing of guide dogs for the blind. A hearing was granted by this court, after decision by the Court of Appeal, Second Appellate District, Division One, for the purpose of giving further study to the problems presented. After such study we have concluded that the opinion of the Court of Appeal, prepared by Justice Lillie, correctly treats and disposes of substantially all of the issues involved, and it is therefore, with certain further discussion and disposition of the final contention presented, adopted as and for the opinion of this court. Such opinion (with appropriate deletions and additions as indicated) is as follows: ¹

Plaintiff corporation, engaged in the training of seeing eye dogs for blind persons and of blind persons to use said dogs, sought a declaratory judgment that sections 7200 through 7217 of the Business and Professions Code, covering the entire chapter on the subject 'Guide Dogs for the Blind,' are unconstitutional on their face and as applied to plaintiff. It also sought an injunction prohibiting defendants from enforcing the above statutes and interfering with plaintiff in the operation of its business or school. The trial court determined that all of the above sections are reasonable and, therefore, constitutional save and except section 7210.5 which makes it unlawful to solicit funds for any person purporting to provide guide dogs for the blind unless such person (for whose benefit the solicitation is made) holds a valid and 'unimpaired' license from defendant board. As to plaintiff, whose license was suspended because it had no licensed trainer, such section was concluded to be unreasonable because without funds it cannot pay for the salary of a new trainer and without a trainer it cannot recover its license. For a 'reasonable period,' fixed by the court at 120 days, defendants were accordingly enjoined from enforcing the provisions of section 7210.5. Defendants appeal from that portion of the judgment partially invalidating section 7210.5; plaintiff, in turn has appealed from the remaining portions of the judgment upholding the constitutionality of the statutes challenged.

On December 10, 1965, several months after the entry of judgment herein (April 28, 1965), plaintiff's license was formally reinstated by appellant board; such action followed plaintiff's employment of a duly licensed trainer who, it is asserted, was hired away from one of the two other licensed schools. Accordingly, the general rule immediately suggests itself that "the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." (Consolidated Vultee etc. Corp. v. United Auto. etc. Workers, 27 Cal.2d 859, 863, 167 P.2d 725, 727.) As that case points out, 'It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. (Citations.)' (Supra, p. 863, 167 P.2d p. 727.) As shown above, however, plaintiff not only sought injunctive but declaratory relief, to wit, a declaratory judgment that the subject legislation is unconstitutional on its face and as applied to plaintiff's operation; since it is established that the constitutionality of a statute may be tested in such manner (Lord v. Garland, 27 Cal.2d 840, 852, 168 P.2d 5), the general rule governing mootness becomes subject to the caserecognized qualification that an appeal will not be dismissed where, despite the happening of the subsequent event, there remain material questions for the court's determination. This qualification or exception has been applied to actions for declaratory relief upon the ground that the court must do complete justice once jurisdiction has been assumed (Bisno v. Sax, 175 Cal.App.2d 714, 731, 346 P.2d 814), and the relief thus granted may encompass future and contingent legal rights. ²

With respect to the proposition last stated, both sides agree that the instant judgment necessarily affects their rights in the future. Thus, if the entire legislation should be stricken down, defendant board would be powerless to enforce its provisions against plaintiff Foundation or any other entity similarly engaged; plaintiff, in turn, would be deprived of the grace period (120 days) during which it could solicit funds if the validity of section 7210.5, as presently worded, is sustained on appeal. There is also agreement between the parties that in the event of a dismissal for mootness plaintiff, in light of its past history in that regard, will again find itself without a trainer; it will thus be relegated to the very situation which precipitated the present litigation, a development creating 'a continuing controversy ripe for decision.' (DiGiorgio Fruit Corp. v. Dept. of Employment, 56 Cal.2d 54, 58, 13 Cal.Rptr. 663, 665, 362 P.2d 487, 489.)

Too, since at least one of the statutes in controversy regulates the public solicitation of funds (Bus. & Prof.Code, § 7210.5), a question of general public interest is presented. (County of Madera v. Gendron, 59 Cal.2d 798, 804, 31 Cal.Rptr. 302, 382 P.2d 342; DiGiorgio Fruit Corp. v. Dept. of Employment, supra, 56 Cal.2d 54, 58, 13 Cal.Rptr. 663, 362 P.2d 487.) The cited cases authorize the retention of an appeal, otherwise dismissable for mootness, when such considerations appear and the questions involved are reasonably sure to rise again. Furthermore, the issues here not only involve the people solicited but they likewise affect our handicapped blind upon whose behalf such solicitations are made; and by the enactment of legislation favoring the blind (Welf. & Inst.Code, § 13000 et seq.; Pen.Code, §§ 643a, 643.5), the Legislature has impliedly made their welfare a matter of continued public interest. For all of the above reasons we are accordingly disposed to decide the appeals on their merits.

Plaintiff's constitutional attack on the entire legislation is based on the several grounds set forth in its complaint as amended; generally, it is alleged to be unreasonable and arbitrary and violative of due process. On appeal, however, plaintiff directs the major part of its argument to the invalidity of sections 7214 and 7209, as well as section 7210.5 which was only partially invalidated. Thus, section 7214, requiring the automatic suspension of a school's license if there is no licensed trainer in charge, is said to violate due process in that no provision is therein made for a hearing before an appropriate department or agency; according to plaintiff, there is no 'compelling public interest' justifying the harshness of this enactment such as confronted the court in Escobedo v. State of California, Department of Motor Vehicles, 35 Cal.2d 870, 222 P.2d 1, where the suspension of an automobile operator's license under our financial responsibility laws was upheld. Section 7209, defining a person's eligibility for examination as a trainer, is assertedly vague and indefinite and allows for the arbitrary use of discretion by appellant board in contravention of settled constitutional guarantees. With respect to section 7210.5, plaintiff contends that the solicitation of funds for charitable purposes is an exercise of free speech which has been unconstitutionally denied by the statute in question. As for defendants, not only is the validity of the legislation defended by them, but the further claim is made (as it was unsuccessfully below) that plaintiff was without standing to initiate the instant litigation because it had not exhausted its administrative remedies prior thereto. Since this latter point, if well taken, is dispositive of the instant appeal, we resolve that question before a determination of the other issues before us.

Where an administrative remedy is provided by statute, this remedy must ordinarily be exhausted before the courts will act. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292, 109 P.2d 942, 132 A.L.R. 715.) It appears that in or about May of 1963, when plaintiff had a valid license, it discharged its then trainer and immediately became subject to the provisions of section 7214; it further appears that in August of 1964 an investigation was commenced by the Attorney General's office into plaintiff's operations, including the solicitation of funds. No formal accusation, seeking an administrative adjudication that plaintiff was in violation of the governing statutes (Gov.Code, § 11505), was filed until January of 1965--some two and one-half months after the filing of plaintiff's original complaint and two months after the amended complaint was filed. Issues were thereafter joined by plaintiff's 'Notice of Defense' (Gov.Code, § 11506), and the administrative proceeding is still pending. (Defendants do not suggest the availability of an administrative remedy through proceedings which plaintiff could have instituted.) We agree with plaintiff that an investigation is not the equivalent of a formal accusation compelling it to...