Henderling v. Carleson

• Decision Date: 07 January 1974
• Citation: 111 Cal.Rptr. 612,36 Cal.App.3d 561
• Court: California Court of Appeals Court of Appeals
• Parties: Geneva HENDERLING, Plaintiff and Appellant, v. Robert B. CARLESON, Director, State Department of Social Welfare, Defendant and Respondent. Civ. 32709.

Page 612

111 Cal.Rptr. 612

36 Cal.App.3d 561

Geneva HENDERLING, Plaintiff and Appellant, v. Robert B. CARLESON, Director, State Department of Social Welfare, Defendant and Respondent.

Civ. 32709.

Court of Appeal, First District, Division 4, California.

Jan. 7, 1974.

Rehearing Denied Feb. 5, 1974.

Hearing Denied March 8, 1974.

Armondo M. Menacal, III, Christopher N. May, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, for plaintiff-appellant.

Evelle J. Younger, Atty. Gen., Elizabeth Palmer, Asst. Atty. Gen., David J. Bowie, Sheridan H. Brown, Deputy Attys. Gen., San Francisco, for defendant-respondent.

CHRISTIAN, Associate Justice.

Geneva Henderling sought from the superior court a writ of mandate to compel Robert B. Carleson, Director of the State Department of Social Welfare, to set aside his order denying welfare assistance to appellant. The writ was denied, and the present appeal followed. We hold that the writ should have been granted.

On November 21, 1969, appellant applied for assistance under one of the federally assisted welfare programs, Aid to the Needy Disabled. (See 42 U.S.C., § 1351, et seq.; Welf. & Inst.Code, §§ 13500--13801.) Under the program, assistance is given to persons who are permanently impaired and totally disabled. (Welf. & Inst.Code, § 13501.) ¹ The Department of Social Services of San Francisco denied her application on June 22, 1970, and on August 12, 1970, appellant made a request for a 'fair hearing' under section 10950, et seq. The hearing was held on October 7, 1970, before a referee employed by the department; the referee rendered a proposed decision on November 16, 1970, finding appellant eligible for benefits.

The facts recited in the referee's proposed decision are summarized as follows. Appellant, 36 years old at the time of the hearing, claimed her disabilities prevented her from obtaining and holding gainful employment. These disabilities included pain and numbness of her fingers and hands, uncontrolled diabetes, anxiety, poor equilibrium, and poor eyesight. Educated through the twelfth grade, appellant had worked as a key punch operator, barber, and repairer of shaving equipment. Her most recent employment terminated in December 1969 as a result of illness.

Five doctors and one rehabilitation counselor submitted reports describing appellant's condition. The evidence presented a picture of real difficulty on the part of appellant; for reasons which will appear, we need not review the evidence in detail.

In January 1971, the referee submitted to the director a proposed decision finding appellant eligible for assistance. Although section 10959 directs the director to act on a referee's proposed decision within 30 days after receiving a copy of the decision, he failed to do so. Appellant repeatedly requested the director to act, and on April 12, 1972, sought mandamus to compel the director to render a decision. The director finally issued a decision on April 18, 1972, after the court had issued an alternative writ of mandate.

The director adopted the referee's findings of fact, but he concluded that appellant's impairments were not total and permanent and did not prevent her from working. The present mandamus proceeding challenges the director's decision.

Reference to the statutes governing hearings and review in welfare cases will set a context for consideration of appellant's contentions. (See §§ 10950--10965.) If an applicant for public assistance is dissatisfied with a grant determination made by a county agency, he may request a 'fair hearing' before the State Department of Social Welfare (SDSW). (§ 10950.) The SDSW must set the hearing to commence within 45 days of the request. (§ 10952.) Hearings are conducted by the director, the administrative advisor of SDSW 'in behalf of the director,' or by referees employed by the department. (§ 10953.) If a referee conducts a hearing, he must prepare a written proposed decision, obtain the approval of the chief referee of SDSW, and submit the decision to the director within 75 days after the conclusion of the hearing. (§ 10958.)

Within 30 days after receiving a copy of the referee's proposed decision, the director may adopt the decision in its entirety, decide the matter himself, or order a rehearing. (§ 10959.) Judicial review of a director's final decision may be had by writ of mandate. (§ 10962.)

If the maximum allowable time were to be used at each step, 150 days would elapse between a request for hearing and the director's decision, unless the director orders a rehearing. (§ 10952 (45 days); § 10958 (75 days); § 10959 (30 days).) However, final administrative action is required by other provisions of law to be taken 'within 60 days ² from the date of a request for a fair hearing.' (45 CFR (1972) § 205.10, subd. (a)(11); King v. Martin (1971) 21 Cal.App.3d 791, 98 Cal.Rptr. 711; SDSW, Public Social Services Manual, § 22--056.1.)

Within the allowed total period of 150 days section 10959 requires the director, 'Within 30 days after receiving a copy of the referee's proposed decision (to) adopt the decision in its entirety; decide the matter himself on the record, including the transcript, with or without taking additional evidence; or order a rehearing to be conducted by himself, the administrative advisor of the department or another referee in behalf of the director.' A preliminary question is whether this time limit is mandatory or directory.

Respondent cites County of Madera v. Holcomb (1968) 259 Cal.App.2d 226, 66 Cal.Rptr. 428. But the Holcomb decision does not support the assertion that the time limit in section 10959 is merely directory. Holcomb expressed the conclusion that the recipient, who was the real party in interest although not a party to the suit, should not lose his right to review after a hearing because of official neglect to provide a record within the prescribed time.

We must analyze section 10959 in its statutory context to determine whether its 30-day time limit is mandatory or directory. (See King v. Martin, Supra, 21 Cal.App.3d 791, 98 Cal.Rptr. 711.) Division 9 of the Welfare and Institutions Code, when read as a whole, points toward the conclusion that the time limit is mandatory. Section 11000 states that '(t)he provisions of law relating to a public assistance program shall be liberally construed to effect the stated objects and purposes of the program.' This rule of liberal construction applies to all parts of division 9. (See Rosas v. Montgomery (1970) 10 Cal.App.3d 77, 88--89, 88 Cal.Rptr. 907 (rule of liberal construction applied to div. 9, pt. 1, § 10001); Cf. County of Madera v. Holcomb, Supra, 259 Cal.App.2d 226, 228, 66 Cal.Rptr. 428 (division 9 should be read as an integrated act).) A principal purpose of the welfare program established by division 9 is to provide prompt services and benefits to those who are eligible. (§§ 10000, 10001, subd. (b), 11004.) Section 10959 reflects a legislative desire to provide timely relief for persons who request fair hearings. A statute should not be read as directory if such an interpretation would render the statute ineffective. (See, e.g., King v. Martin, Supra, 21 Cal.App.3d 791, 98 Cal.Rptr. 711.) If the 30-day limit in section 10959 is read as directory, the statute would be ineffective to insure prompt action by the director. We conclude that the time limit is mandatory.

Appellant asserts that the director lost his authority to act under section 10959 by not rendering a decision within 30 days and that he must therefore adopt the referee's decision, which was favorable to appellant. But an inclusive examination of part 2 of division 9 shows that the Legislature intended the director (not a referee) to issue the final decision on a fair hearing. Section 10958 requires the referee to file a 'proposed' decision with the director; section 10959 allows the director to adopt the referee's decision or make his own decision. The legislative scheme for a final decision after a fair hearing, the reference to a referee's proposed decision (§§ 10958, 10959, 10960), and the reference to the director's decision as the final decision (§§ 10960--10963) all support the conclusion that the director (not the referee) must issue the final decision, whether or not he has complied with the 30-day limit in section 10959.

Appellant argues that equitable estoppel independently compels the proposed decision of the referee to be considered the final decision in this case since the director waited for approximately 17 months before acting. A party may indeed be estopped if his act or omission led another into a change of position. (Cf. Farrell v. County of Placer (1944) 23 Cal.2d 624, 628, 145 P.2d 570.) But the director's inactivity, although not excused, has not been shown to have induced appellant to reply upon anything done by the director.

Appellant contends that the decision of the director is invalid because the decision was not, in the words of section 10959, based 'on the record, Including the transcript.' (Emphasis added.) It is conceded by respondent that the 'fair hearing' testimony was recorded electronically rather than by a phonographic reporter. It is also conceded that the electronic record was not translated into typescript until after the director had issued his decision. The electronic tape of the 'fair hearing' testimony was transmitted to the director with the case file, but our record is silent as to whether the director actually listened to the tape recording of appellant's hearing. Where the record is silent, we can appropriately presume official duty was performed. (Evid.Code, § 664.)

The question remains whether it is unlawful to use an audible electronic record rather than a paper transcript. It is true that the word 'transcript'normally connotes 'a written or printed copy' (Webster's Third New International Dictionary (unabridged ...