Martin v. State Personnel Bd.

• Decision Date: 08 June 1972
• Citation: 103 Cal.Rptr. 306,26 Cal.App.3d 573
• Court: California Court of Appeals Court of Appeals
• Parties: Willie MARTIN, Jr., Petitioner and Appellant, v. STATE PERSONNEL BOARD, Department of Corrections, et al., Respondents. Civ. 13215.

Page 306

103 Cal.Rptr. 306

26 Cal.App.3d 573

Willie MARTIN, Jr., Petitioner and Appellant, v. STATE PERSONNEL BOARD, Department of Corrections, et al., Respondents.

Civ. 13215.

Court of Appeal, Third District, California.

June 8, 1972.

As Modified on Denial of Rehearing July 5, 1972.

Hearing Denied Aug. 9, 1972.

Blackmon, Isenberg, Moulds & Blicker, Sacramento, for petitioner and appellant.

Evelle J. Younger, Atty. Gen. by Matthew P. Boyle, Deputy Atty. Gen., San Francisco, for respondents.

JANES, Associate Justice.

The Department of Corrections dismissed appellant Martin from his civil service position as a correctional officer at San Quentin Prison on July 24, 1970. After an administrative hearing, the State Personnel Board upheld the dismissal. Martin then filed in the Sacramento Superior Court a petition for a writ of mandate to compel his reinstatement with back pay. He appeals from the judgment denying the writ.

In its written notice of punitive action (Gov.Code, § 19574), the Department of Corrections charged Martin with willful disobedience of a departmental rule which provided in relevant part that 'Employees shall not take or send either to or from any inmate any message verbal or written . . . except such as is necessary in transacting the business of the institution.'

After taking evidence, the hearing officer made written findings, among which the following are pertinent: 'On or about March 2, 1970 a San Quentin Prison inmate wrote an unauthorized letter which he wanted smuggled out of the institution. This letter was given to (Martin) by another inmate with the understanding that (Martin) would have it delivered through channels other than the regular channels for handling inmate mail. (Martin) did not in fact mail or deliver the letter but instead kept it until it was discovered in his room on the institution grounds on July 2, 1970. (Martin's) conduct in accepting this unauthorized inmate communication was known to him at the time to be a violation of the Director's Rules and constitutes willful disobedience within the meaning of Government Code Section 19572(o).' The findings were adopted by the State Personnel Board. On this appeal, Martin makes a two-pronged attack on those findings.

I.

Martin first contends that the superior court was required to undertake a de novo review of the evidence at the administrative hearing, and that the court's duty was to exercise its independent judgment as to the weight of that evidence. Based upon such a de novo evaluation of the administrative record, he argues that the findings were against the weight of the evidence.

In support of his contention, Martin cites Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242, in which it was stated that trial courts must exercise independent judgment upon the weight of the evidence in the administrative record in cases where the administrative decision substantially affects fundamental vested rights, such as the right to practice one's trade or profession. (Id. at pp. 143--144, 93 Cal.Rptr. 234, 481 P.2d 242; cf., Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16--17, 95 Cal.Rptr. 329, 485 P.2d 529.) ¹

Martin's reliance upon Bixby is misplaced. That case was concerned with the review of decisions of statewide agencies which are Not constitutionally authorized to exercise judicial functions. (4 Cal.3d at pp. 137--138, 93 Cal.Rptr. 234, 481 P.2d 242.) The Bixby opinion expressly pointed out that it did not involve 'a statewide agency upon which the California Constitution has specifically conferred adjudicative powers.' (Id. at p. 141, fn. 7, 93 Cal.Rptr. at p. 241, 481 P.2d at p. 249.)

In contrast, the factual determinations of the State Personnel Board--a statewide agency which was created by, and which derives its adjudicating power from, the state Constitution--'are not subject to re-examination in a trial de novo but are to be upheld by a reviewing court if they are supported by substantial evidence.' (Shepherd v. State Personnel Board (1957) 48 Cal.2d 41, 46--47, 307 P.2d 4, 7; see also, Pereyda v. State Personnel Board (1971) 15 Cal.App.3d 47, 50, 92 Cal.Rptr. 746; Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 717, 85 Cal.Rptr. 762; Neely v. California State Personnel Bd. (1965) 237 Cal.App.2d 487, 488--489, 47 Cal.Rptr. 64.) 'The substantial evidence rule is equivalent to the concept of "substantial evidence in the light of the whole record." (Citations.)' (Coomes v. State Personnel Board (1963) 215 Cal.App.2d 770, 773, 30 Cal.Rptr. 639, 641.)

When it reviews the evidence before the State Personnel Board, the superior court exercises the same function as this court. (Neely v. California State Personnel Bd., supra, 237 Cal.App.2d at p. 489, 47 Cal.Rptr. 64.) Neither court can reweigh the evidence. (Gubser v. Department of Employment (1969) 271 Cal.App.2d 240, 245, 76 Cal.Rptr. 577.) 'In following the substantial evidence rule we are obliged to consider the evidence in the light most favorable to the Board, giving to it the benefit of every reasonable inference and resolving all conflicts in its favor.' (Gee v. California State Personnel Bd., supra, 5 Cal.App.3d at p. 717, 85 Cal.Rptr. at p. 765.) 'Inferences based upon circumstantial evidence are sufficient to support a finding.' (Pereyda v. State Personnel Board, supra, 15 Cal.App.3d at p. 50, 92 Cal.Rptr. at p. 748.)

II.

Martin's second contention is that, under the substantial evidence rule, the Board's findings were without sufficient support because they were based solely upon multiple hearsay. We hold the contention to be meritorious even though, at the administrative hearing, Martin's attorney made no objections on the ground of hearsay. The relevant evidence at the hearing was as follows:

On July 2, 1970, prison security officers searched Martin's room in the bachelor officers' quarters at San Quentin. During the search, they found a letter in a sealed envelope at the bottom of a box of greeting cards in the drawer of Martin's night table. The letter was dated '3--2, 1970.' It had been written by an inmate named Brown, who had been transferred from San Quentin to another institution on March 23, 1970. The envelope bore a San Francisco address.

Prison officials testified that two unidentified inmates, serving as room attendants, customarily had a key and access to Martin's room.

On July 7, 1970, two security officers interviewed Brown in San Luis Obispo, where he was then incarcerated. One of his interrogators--Officer Crandall--testified without hearsay objection that Brown told them he (Brown) had given his letter to an inmate named Rogers; that Brown said that Rogers had told him (Brown) that he (Rogers) would give the letter to Martin to 'take out'; and that Brown also claimed to have seen Martin passing 'hot dog' books--i.e., 'girlie' books--to Rogers.

Officer Smith--the other officer who questioned Brown on July 7--was not called as a witness. An official written report from Smith was put into evidence. In relevant part, Smith's report stated: 'When questioned, Brown admitted that he had written the letter and had given it to another inmate who would see that it got out. Further questioning revealed that the other inmate was Rogers, . . . and Rogers was to give it to Officer W. Martin. Brown also admitted that he had rented 'Hot Dog' books which he had seen Officer W. Martin give to inmate Rogers . . .. ( ) When the writer questioned inmate Rogers, he denied any knowledge and admitted nothing.'

Smith's report contained hearsay and conclusions. (See, Witkin, Cal.Evidence (2d ed.), §§ 590--591, pp. 562--563.) Martin's appellate brief asserts that he made a 'timely objection' to the introduction of the report into evidence. In point of fact, however, his so-called 'objection' was his attorney's statement 'I am kind of curious about the purpose of it (Smith's report) being offered, and I Would impose an objection Unless I hear an explanation.' (Emphasis added.) Even if counsel's remark may be construed as an objection, it was an insufficient general one which specified no particular ground. (See, Witkin, Cal.Evidence (2d ed.), § 1288, pp. 1191--1192.)

Inmate Rogers was not called as a witness. Brown testified that he (Brown) 'was to give (the letter) to another inmate and he was to give it to another inmate' to get out. He further testified, 'There was no free man (non-inmate) involved that I knew of.' He admitted telling Crandall and Smith that he had given the letter to 'an inmate,' but claimed that he 'didn't tell them anything about the inmate.' He denied bringing up Martin's name during the July 7 interview; he testified that, when the officers asked him how Martin had gotten the letter, he told them 'I didn't know he had it.' He denied telling Crandall and Smith that he had observed Martin giving another inmate 'hot dog' books.

On July 10, 1970, when Martin's superiors asked him how the letter came to be in his greeting card box, he replied that he did not know it was there, had no put it there, and did not know how it got there. Martin took the witness stand and denied seeing the letter in his room or having any knowledge about how the letter got into his room. His attorney stipulated that Martin had 'constructive' knowledge of the departmental rule prohibiting the unauthorized transmission of inmates' messages.

On this appeal, Martin's contention that the findings are not based on substantial evidence is, in essence, an attack upon Officer Crandall's hearsay on hearsay testimony. ² As Martin's brief puts it, 'Officer Phillip R. Crandall testified that Inmate Brown said that Rogers said that Officer Martin would carry out the letter . . .. The traditional unreliability of multiple hearsay is further exacerbated here by the fact that two of the alleged (hearsay) declarants are convicted felons.'

Martin's administrative hearing was governed by section 11513 of the Government Code. Sub...