Frost v. State Personnel Bd.

• Decision Date: 10 March 1961
• Citation: 11 Cal.Rptr. 718,190 Cal.App.2d 1
• Parties: Ralph W. FROST, Petltioner and Respondent, v. STATE PERSONNEL BOARD of the State of California et al., Respondents and Appellants. Civ. 9964.
• Court: California Court of Appeals Court of Appeals

Page 718

11 Cal.Rptr. 718

190 Cal.App.2d 1

Ralph W. FROST, Petltioner and Respondent, v. STATE PERSONNEL BOARD of the State of California et al., Respondents and Appellants.

Civ. 9964.

District Court of Appeal, Third District, California.

March 10, 1961.

Rehearing Denied April 4, 1961.

Hearing Denied May 3, 1961.

Stanley Mosk, Atty. Gen., by Willard A. Shank, Deputy Atty. Gen., for appellants.

Donald A. Peters, Sacramento, for respondent.

VAN DYKE, Presiding Justice.

This is an appeal from a judgment of the Superior Court of Sacramento County directing the issuance of a peremptory writ requiring respondent State Personnel Board to set aside an order dismissing the appeal of petitioner Ralph W. Frost in a proceeding wherein he sought relief from board action denying him a salary increase and reclassifying him to a lower grade as a state employee with civil service status. The writ of mandate as ordered out required that the board hold further hearings in the proceeding before it and proceed to a decision upon the merits.

There is presented to us the following questions: 1. In a proceeding before a hearing officer without the presence of the agency board, may the hearing officer entertain a motion to dismiss an action against the agency at the close of the actor's evidence? 2. If, in the instant case, improper procedure has been adopted, was the procedural error of sufficient materiality to warrant setting aside the order of dismissal?

The Administrative Procedure Act, now appearing as Government Code Sections 11500 et seq., was adopted by the Legislature after comprehensive studies by various agencies concerning the need for and the requirements of an administrative code. The subject-matter was treated extensively in the Tenth Biennial Report of the Judicial Council, Part Two. The council reported that a fairly detailed examination of statute law indicated there were more than one hundred agencies which might properly come within the authorization to the council; that the adjudicating power of state agencies varied greatly, and that it was considered desirable to offer only a careful and detailed proposal with respect to a portion of the field of administrative adjudication without attempting to cover the entire field with a general, less precise statute. The council proposed that the Legislature pass an act creating a department of administrative procedure and appended to its report proposed act which in substance was later adopted. With respect to hearings before the agencies, the council stated in its report that the proposed legislation dealing with hearings had two fundamental purposes: First the assurance that all hearings would provide due process of law and be conducted in an orderly manner. Second, that there should be achieved a separation of the prosecuting and adjudicating functions within the agencies. The first purpose, it was asserted, would be served by the provision that all hearings must be conducted by qualified hearing officers with a proviso that the agency might either delegate the duty of conducting a hearing to a hearing officer who would sit alone, or the agency might itself elect to sit at a hearing with the hearing officer presiding. Said the council, at page 20:

'When the hearing officer sits with the agency it is provided that he preside at the hearing, rule on the admissibility of evidence and act as legal adviser. * * * When the hearing officer sits alone he is in effect a deputy of the agency and is authorized to exercise all of the agency's powers in conducting the hearing.'

It is apparent from the legislation enacted that in the main the proposals of the Judicial Council were accepted. The position of the hearing officer is somewhat unique. He presides at all hearings, either alone or in the presence of the agency board. He rules upon the admissibility of evidence and advises the board as to all matters of law involved in a board decision, but he has no power to decide the issues presented in the hearing. Power to adjudicate has not been given to him. The question of who should make the decision received serious consideration. Said the report of the council, page 23, title Decision '* * * Who should make the decision was one of the most difficult problems presented. The first conclusion reached by the Council, which was expressed in its tentative report, was that an initial decision should be made in all cases by the person or body which heard the evidence. This was an adaptation of the rule of the Morgan cases in the United States Supreme Court which are customarily, though not precisely, summarized by the phrase that 'he who decides must hear.' * * * The tentative proposals of the Council, therefore, provided that the initial decision should be made by the agency if the agency members heard the case and by a hearing officer if he sat alone. The initial decision of the hearing officer was, of course, subject to the control of the agency through its power to reconsider the case * * *.

'The tentative Council proposal met with considerable objection, upon the ground that the full power of decision should remain with the agency in each case. The principal reason given was that the Legislature has entrusted the ultimate authority to the agency itself and that the responsibility for the decision should be retained by those responsible for the policies of the agency. This argument carries a great deal of weight. It is particularly persuasive in view of the fact that the Council's tentative proposal involved a procedure uncommon in California. A number of State agencies now use deputies to hear cases and such deputies normally have only the power to recommend a decision to the ultimate deciding authority.

'* * * [T]he Council's proposal, which allows the agency itself to retain direct control over the adjudicating function, will nevertheless permit expeditious handling of routine cases where the agency finds no fault with the hearing officer's proposed decision. If the agency itself hears the case, it decides it. If a hearing officer alone hears the case he prepares a proposed decision in the form required for the final decision.'

The recommendation of the council as to where the adjudicative power should rest is reflected in Section 11517 of the Government Code, which we quote:

'(a) If a contested case is heard before an agency itself the hearing officer who presided at the hearing shall be present during the consideration of the case and if requested, shall assist and advise the agency. Where a contested case is heard before an agency itself, no member thereof who did not hear the evidence shall vote on the decision.

'(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.'

Demurrers to evidence and motions for nonsuit are familiar in court proceedings. In the main they are intended to save time where, through failure to present a prima facie case, a plaintiff may suffer dismissal of his action without his adversary being put to the useless task of rebuttal where no case has been made. But in such a situation the court must accept as true all testimony in plaintiff's favor and must draw all permissible inferences in his favor. The judge never weighs the evidence in passing on such a motion. Preponderance of the evidence is not, at that point, an issue. As a practical matter, judges often, though doubting that a prima facie case has been made out, nevertheless deny the motion for dismissal and proceed to the further trial of the cause. The ruling on such a motion in a court trial can be and usually is made promptly without any extensive delay or continuance of the trial. The situation is quite different in administrative procedure where the officer sits alone, as is generally the case, and as was done in the cause before us. The hearing officer cannot rule on the motion. The board is not present. He must therefore of necessity recess the hearing, report the matter to the board, which must in turn be convened for the purpose of passing on the motion. The motion will be presented to a board wholly unfamiliar with the case before it and the board, generally untrained in matters of law, will often be presented with a difficult and time-consuming decision. The...