Kaylor v. Department of Human Resources Dev.

• Decision Date: 01 June 1973
• Citation: 32 Cal.App.3d 732,108 Cal.Rptr. 267
• Court: California Court of Appeals Court of Appeals
• Parties: Vincent C. KAYLOR, Plaintiff and Appellant, v. DEPARTMENT OF HUMAN RESOURCES et al., Defendants and Respondents. Civ. 31786.

Page 267

108 Cal.Rptr. 267

32 Cal.App.3d 732

Vincent C. KAYLOR, Plaintiff and Appellant, v. DEPARTMENT OF HUMAN RESOURCES et al., Defendants and Respondents.

Civ. 31786.

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

June 1, 1973.

Hearing Denied July 25, 1973.

Stephen F. Von Till, Jerald H. Wilhelm, Newark, for appellant.

Evelle J. Younger, Atty. Gen., Elizabeth Palmer, Asst. Atty. Gen., David J. Bowie, Deputy Atty. Gen., San Francisco, for respondents.

DEVINE, Presiding Justice.

Appellant, having been discharged from his job with Pacific States Steel Corporation and having been denied unemployment insurance by the Unemployment Insurance Appeals Board (hereafter 'the Board'), sought a writ of mandate to compel an order for payment. The writ was denied. He appeals.

Kaylor was cited for driving a motor vehicle without an operator's license. It was discovered that a bench warrant had been issued for his arrest for failure to appear in court on another traffic violation. After trial, he was sentenced to pay a fine of $120 or to serve seven days in jail. Although he had some earned wages and asked his supervisor to provide him with funds for bail or to pay the fine, he was unsuccessful. He was unable to pay the fine. So he spent the seven days in jail. Once his jail term had started, the referee found, he was not allowed to telephone. The company knew where he was, so that the provision in the contract allowing termination of employment upon three days unreported absence is unavailable. ¹

The decisions of the referee and of the Board denying benefits were based on Unemployment Insurance Code section 1256.1, which reads, in pertinent part: '(a) If the employment of an individual is terminated due to his absence from work for a period in excess of 24 hours because of his incarceration and he is convicted of the offense for which he was incarcerated or of any lesser included offense, he shall be deemed to have left his work voluntarily without good cause for the purposes of Section 1256.' ²

But serving of the sentence could have been avoided under the ruling of In re Antazo, 3 Cal.3d 100, 115, 89 Cal.Rptr. 255, 473 P.2d 999. Compulsion to serve a sentence which is imposed only in lieu of the primary penalty, a fine, which cannot be paid because of the indigence of the defendant constitutes an invidious discrimination in violation of the equal protection clause of the Fourteenth Amendment. Respondents argue that appellant brought the imprisonment on himself, not just because he could not pay the fine, but because he committed the original offense, wherefore his absence was not 'due to' his impecuniousness only, but also to his failure to obey the law. But this was so with Antazo, too. He had committed the crime of arson; his imprisonment would have been avoidable if he had not broken the law. His incarceration would have been avoidable, however, if he had been able to pay the fine and a penalty assessment. We see no distinction, so far as invidious discrimination between the affluent and the impoverished is concerned, between the incarceration itself and the denial of the unemployment compensation provided by law, resulting from the incarceration. Both were acts of agencies of the state. ³

But it is argued by respondents that the only proper way to invoke the Antazo rule is that of habeas corpus or by petition for writ of mandate against the rendering court. There is cited the rule announced in Thomas v. Department of Motor Vehicles, 3 Cal.3d 335, 337--339, 90 Cal.Rptr. 586, 475 P.2d 858, that an administrative department is not empowered to make a judicial decision which would invalidate a conviction, and that attack in the rendering court is the proper procedure. But in the Thomas case, the administrative agency, the Department of Motor Vehicles, was required to suspend Thomas' driving privilege because of his two convictions of drunk driving (one of which Thomas contended was invalid because of lack of counsel). The agency had but one course to follow. It could not annul the court's sentence, and it had to act against the license.

A distinction from the Thomas case was noted in DeRasmo v. Smith, 15 Cal.App.3d 601, 607--610, 93 Cal.Rptr. 289, in a case wherein there was discretion in the agency to rule on matters of fact and of law. Where a judgment of conviction does not produce a mandatory ruling against a party in an administrative proceeding, the administrative agency need not attempt to do that which is beyond its powers but, the conviction or sentence remaining, may render its own decision. In the present case, the administrative agency could not declare the sentence unconstitutional (Williams v. Department of Motor Vehicles, 2 Cal.App.3d 949, 953--954, 83 Cal.Rptr. 76; Laisne v. California State Board of Optometry, 19 Cal.2d 831, 834--835, 123 P.2d 457), but it did have jurisdiction to hold, as appellant had urged it to do, that section 1256.1 of the Unemployment Insurance Code is to be construed to refer only to 'incarceration' in cases wherein outright imprisonment was imposed, and not to those in which the confinement was but a substitute for a fine which could not be paid because of the employee's lack of funds, thus rendering a parallel ruling to that of Antazo.

Although appellant's brief to the Board made reference to denial of equal protection of the laws in violation of the Constitutions of the United States and of the State of California, thus raising a point which may have been beyond the jurisdiction of the Board, it also addressed itself to the lesser propositions, which were within the jurisdiction of the Board, that to make a decision which would 'operate onerously against those for whose benefits the statute exists' would be contrary to the policy of the code as declared in section 100 thereof, ⁴ and that a severe construction of section 1256.1 would present 'the ludicrous proposition that a rich man could retain his job or his eligibility for unemployment...