Jones v. Lopez Plascencia, 2

• Decision Date: 18 August 1969
• Docket Number: CA-CIV,No. 2,2
• Citation: 458 P.2d 120,10 Ariz.App. 253
• Parties: Roger C. JONES and Agnes Jones, husband and wife, Appellants, v. Jose G. LOPEZ PLASCENCIA, Chairman, Elizabeth Brook, William N. Henry, Glenn A. Jones and James J. Coughlin, Members, Arizona State Department of Public Welfare, and John O. Graham, Commissioner, Arizona State Department of Public Welfare, Appellees. 675.
• Court: Arizona Court of Appeals

Page 120

458 P.2d 120

10 Ariz.App. 253

Roger C. JONES and Agnes Jones, husband and wife, Appellants, v. Jose G. LOPEZ PLASCENCIA, Chairman, Elizabeth Brook, William N. Henry, Glenn A. Jones and James J. Coughlin, Members, Arizona State Department of Public Welfare, and John O. Graham, Commissioner, Arizona State Department of Public Welfare, Appellees.

No. 2 CA-CIV 675.

Court of Appeals of Arizona.

Aug. 18, 1969.

Rehearing Denied Oct. 6, 1969.

Review Denied Nov. 18, 1969.

Anthony B. Ching, Chief Trial Counsel, Legal Aid Society of the Pima County Bar Association, Tucson, for appellants.

Gary K. Nelson, Atty. Gen., by Peter Sownie, and Michael S. Flam, Asst. Attys. Gen., for appellees.

MOLLOY, Chief Judge.

Appellants, Roger and Agnes Jones, husband and wife, commenced this certiorari proceeding in the superior court, seeking a determination that the appellee, State Department of Public Welfare (and its constituent members and commissioner), acted without jurisdiction or abused its discretion in ruling that monthly benefits payable to the Joneses under the federally assisted 'Aid to the permanently and totally disabled' (APTD) welfare program were to be reduced by an amount equal to the monthly net earnings of their 19-year-old son, less only a fixed $40 per month allowance for his expenses of employment. The reviewability and propriety of her Department's ruling are the issues before us in this appeal from the judgment of the lower court denying relief. The following facts appear from the record developed at a departmental hearing requested by appellants. Both Mr. and Mrs. Jones are permanently and totally disabled within the meaning of those terms as they are used in A.R.S. § 46--232 which establishes for this state an APTD program, designed by the terms of the cited statute and A.R.S. § 46--311 to be in conformity with the authorizing federal legislation, which is subchapter XIV of the Social Security Act, 42 U.S.C.A. §§ 1351--1355.

Prior to April, 1968, the Joneses were each receiving $80 per month in APTD benefits, the maximum then payable to one person under the Arizona program. See A.R.S. § 46--232, subsec. B, as amended in 1962, and note 2, Infra. At the time of the hearing, an affidavit executed by the Joneses' son Eugene, who is 19 years of age and resides with the Joneses, was received into the record. The affidavit reads in part as follows:

'That he (affiant) is employed at Tucson Medical Center as a laboratory attendant, and his present net earnings are * * * ($195.00) * * * per month.

'* * * that it was necessary for him to obtain an automobile to travel to his place of employment.

'That he purchased a 1966 Ford Mustang * * *.

* * *

* * *

'That the total monthly payment paid on the car, exclusive of gasoline, oil, maintenance, license fees, wear and tear and replacement parts is * * * ($123.30) * * *.

* * *

* * *

'That (after certain life insurance and accident insurance premiums totaling $14.05 per month) this leaves a remaining balance of * * * ($57.65) * * * with which he meets all other necessary expenses, including gas, oil and other costs of transportation, food, clothing, laundry, recreation and any assistance that he may be able to provide to his parents.

* * *

* * *

'That due to circumstances beyond his control He has not been able to contribute any amount of money to assist his parents since he obtained employment * * *.' (Emphasis added)

After the hearing, the examiner made findings and recommendations in which he determined that the maximum '* * * need of the assistance household * * *,' composed of appellants and Eugene, which the department would consider was $202. The examiner then concluded, on the basis of departmental regulations or policy directives hereinafter set forth, that Eugene's $195 monthly net salary, diminished by a $40 cost-of-employment allowance, should be applied against the total monthly need of $202, leaving a balance or '* * * unmet need * * *' of $47 in monthly APTD benefits to be paid to appellants. The appellee department decided the matter in accordance with the examiner's conclusions and so advised appellants.

The regulations relied upon by the examiner were taken from the department's 'Arizona Family Services Manual,' and are set forth in the record as follows.

Section 3--1120.1:

"Assistance Household' is considered to be synonymous with 'Family Unit' when it is comprised of a group of persons residing together and interdependent upon each other. The income and resources of such a group are applied for the benefit of the entire group, and the needs of the entire group are indicated in the budget.'

Section 3--404.3:

'Earned Income of Unemancipated ADA Minors: All income and resources of members of an assistance household must be taken into consideration. As a general rule, all children under age 21 who are residing in the home of their parents or other adult relatives are considered Unemancipated and the parent or relative has a right to the earnings and services of said children. 'Emancipation' means the freeing of the child from the custody of the parent and from obligation to render services to him. A child becomes emancipated by attainment of majority (age 21) or by a valid marriage. Emancipation may also occur by the parent renouncing all legal duties and surrendering legal rights as a parent or by deserting or abandoning the child.

'A. If not emancipated, the net earned income of a child is determined by first deducting $40 as a standard cost of employment from gross earnings (salary before deductions for Social Security, Income Tax, etc.).

'(The cost of employment is a standard amount allowed for any such minor and includes $10 for miscellaneous costs such as union dues, contributions, Social Security coverage, etc., $7.50 for additional personal care items, $7.50 for extra food away from home, $7 for extra clothing upkeep and $8 for transportation.)' (Emphasis in original)

Appellants advanced essentially two contentions in the trial court: (1) that the regulations relied upon by the hearing examiner and the department are inapplicable to APTD welfare recipients, as opposed to 'ADC' or 'AFDC' ¹ recipients; and (2) that, even if the regulations were applicable to appellants, the fixed $40 cost-of-employment factor is arbitrary, unreasonable, and repugnant to the controlling federal law.

The trial court, while indicating an inclination to agree with the merits of appellants' position, considered that it was precluded by legislative enactment from reviewing that it regarded as the policy decisions and discretionary acts of the welfare department, since in its view the decision sought to be reviewed was within he broad scope of its jurisdiction and rendered in pursuance of its regular authority. The trial judge particularly relied upon A.R.S. § 46--205, subsec. C, which provides that 'All decisions of the state (welfare) department shall be final, and shall be binding upon the county department.' The trial judge also noted the provisions of A.R.S. § 12--902, subsec. A, a part of the Administrative Review Act, which expressly excepts from its scope of application decisions of the welfare department.

We are thus faced, at the outset, with the question of the propriety of review by writ of certiorari. In Allen v. Graham, 8 Ariz.App. 336, 446 P.2d 240 (1968), we held, giving effect to § 12--902, subsec. A, supra, that a welfare seeker did not have a statutory right to judicial review of a departmental decision denying benefits. The plaintiff there, however, had commenced an ordinary civil action seeking 'review' of the departmental decision and a declaratory judgment. 8 Ariz.App. 337, 446 P.2d 241. We noted, but did not decide, the question of whether extraordinary writs such as a writ of certiorari could be available to a thwarted applicant. 8 Ariz.App. 338, 446 P.2d 242. We think the question, now before us, must In this particular case be answered in the affirmative.

We do not glean from the terms of § 46--205, subsec. C the same broad meaning as ascribed to them by the trial judge. Rather, we think that § 46--205, subsec. C expresses the legislature's clear intent that there be no appeal beyond the state department in a welfare case. As such, it is complementary to and confirmatory of § 12--902, subsec. A, as interpreted in Allen v. Graham, Supra. There is authority to the effect that the legislature cannot limit the remedy of certiorari, which has a constitutional basis. Batty v. State Dental Board, 57 Ariz. 239, 250, 112 P.2d 870, 875 (1941), citing former art. 6, § 6, Ariz.Const., A.R.S. See also 10 Cal.Jur.2d Certiorari § 6, p. 47. The writ lies to review 'judicial' (as opposed to 'legislative') decisions of 'quasi-judicial' administrative bodies as well as the decisions of courts. Batty v. State Dental Board, Supra, at 57 Ariz. 251, 112 P.2d 875--876. Use of the writ has heretofore been made in proceedings involving the welfare department. Bennett v. State Board of Public Welfare, 95 Ariz. 170, 388 P.2d 166 (1963); Camerena v. Department of Public Welfare, 9 Ariz.App. 120, 449 P.2d 957 (1969), now under review in the Supreme Court.

Traditionally, and under our statute, certiorari lies only when an inferior tribunal has exceeded its jurisdiction and there is no appeal, nor any plain, speedy and adequate remedy otherwise. Johnson & Douglas v. Superior Court, 101 Ariz. 373, 374, 419 P.2d 730, 731 (1966); A.R.S. § 12--2001. 'Jurisdiction' is of three different kinds: jurisdiction over the person; jurisdiction over the subject matter; and Jurisdiction to render the particular judgment in question. Wall v. Superior Court of Yavapai County,53 Ariz. 344, 352, 89 P.2d 624, 628 (1939). Our Supreme Court has stated that 'The word 'jurisdiction' has different shades of meaning and as applied to certiorari and prohibition matters it should not be given a too restrictive meaning.' Duncan v. Truman, 74 Ariz. 328, 331, 248 P.2d 879,...