Morton v. Superior Court

• Decision Date: 24 July 1970
• Citation: 9 Cal.App.3d 977,88 Cal.Rptr. 533
• Court: California Court of Appeals Court of Appeals
• Parties: , 75 L.R.R.M. (BNA) 2219, 63 Lab.Cas. P 52,399 H. R. MORTON and City of Fresno, Petitioners, v. SUPERIOR COURT OF FRESNO COUNTY, Respondent; Ted C. LINDSEY, etc. et al., Real Parties in Interest. Civ. 1303.

Page 533

88 Cal.Rptr. 533

9 Cal.App.3d 977, 75 L.R.R.M. (BNA) 2219, 63 Lab.Cas. P 52,399

H. R. MORTON and City of Fresno, Petitioners, v. SUPERIOR COURT OF FRESNO COUNTY, Respondent Ted C. LINDSEY, etc. et al., Real Parties in Interest.

Civ. 1303.

Court of Appeal, Fifth District, California.

July 24, 1970.

[9 Cal.App.3d 980] Spencer Thomas, Jr., City Atty., Alan D. Davidson, Asst. City Atty., A. Grant Macomber, Senior Deputy City Atty., Thomas G. Spenik, Deputy City Atty., Fresno, for petitioners.

Pettis & Brott and Eugene E. Brott, Oakland, for real parties in interest.

OPINION

GARGANO, Associate Justice.

The City of Fresno and its Chief of Police, H. R. Morton, have applied for a writ of prohibition to prevent further proceedings in the lawsuit now pending in the Superior Court of Fresno County, in which real parties in interest, hereafter referred to as real parties, seek a writ of mandate and declaratory relief. Petitioners contend that the superior court lacks jurisdiction because real parties did not exhaust their administrative remedy before filing the action. Petitioners allege that real parties are city employees with a labor grievance, and that they by-passed the grievance procedure adopted by the city manager to resolve such grievances. Under this procedure, which is the crux of this lawsuit, a city employee with a complaint relating to his employment may file a written grievance with his immediate supervisor, and if not satisfied with the decision of the supervisor, he may present the grievance to his department head. If the employee is not satisfied with the decision of the department head, he may appeal to the city manager through a grievance advisory committee consisting of five members. The grievance advisory committee must investigate the grievance, and upon completion of the investigation must file a written report with the city manager; the report must contain a statement of the facts and a recommended solution. The city manager then must render a decision.

It is undisputed that the action which petitioners seek to enjoin is primarily concerned with a labor dispute between real parties and the City of Fresno; real parties are police officers employed by the city, and they brought the action on behalf of themselves and all members of the Fresno Police Relief Association to secure a judicial declaration that the time consumed by policemen in putting on and taking off their uniforms and during lunch periods is compensable overtime. ¹ It is also undisputed that real parties intentionally bypassed the city's grievance procedure. Real parties contend that their controversy with the city does not come within the scope of that procedure and that, in any event, the exhaustion doctrine does not apply to this case. Because it is settled that the exhaustion of an administrative remedy, where one is available, is a condition precedent to obtaining judicial relief, and that 'a court violating the rule acts in excess of jurisdiction' (Hollon v. Pierce, 257 Cal.App.2d 468, 475, 64 Cal.Rptr. 808, 812; see also United States v. Superior Court, 19 Cal.2d 189, 120 P.2d 26), we shall consider petitioners' application for a writ of prohibition on the merits.

We turn first to real parties' contention that the present controversy does not come within the scope of the city's grievance procedure. They assert that (1) it is designed to solve personnel problems, not major policy disputes relating to overtime and similar matters, (2) it is permissive, not mandatory, (3) it is a regressive process, is not binding on any party and does not establish a reasonable standard for solving a grievance, and (4) it is illegal.

1. Arguably, the city's grievance procedure was adopted by the city manager to solve only minor personnel problems as real parties maintain. It states, for example, that one criterion is that the grievance '* * * must arise out of an act or omission of a supervisor related directly to the employment relationship.' On the other hand, it is the duty of the city manager to see that the provisions of the city charter and the city's municipal ordinances are executed and enforced (Charter of the City of Fresno, § 705(a)). The administrative manual also states the purpose of the grievance procedure is to '* * * provide for the settlement of differences relating to employment or working conditions through an orderly grievance procedure.' The requirement that police officers wear uniforms and the rules regulating their conduct during lunch periods are working conditions. In addition, the members of the police department are entitled to compensating time off (or in lieu thereof compensation) for overtime service. ² It is, therefore, a reasonable assumption that at least one function of the grievance procedure is to enable the city manager to perform the duties imposed upon him by the charter. If there was any question about the applicability of the grievance procedure, it was incumbent upon real parties to present the question to the city manager so that he could decide the issue in the first instance. It lies within the power of the administrative agency (in this case the city manager) to determine, in the first instance and before judicial relief may be obtained, whether a given controversy falls within its granted jurisdiction. (United States v. Sing Tuck, 194 U.S. 161, 24 S.Ct. 621, 48 L.Ed. 917; United States v. Superior Court, Supra, 19 Cal.2d 189, 194--195, 120 P.2d 26.)

2. Real parties apparently believe that because an employee is not required to file a written grievance, he may resort to the judicial process without first submitting to the grievance procedure. The basic purpose for the exhaustion doctrine is to lighten the burden of overworked courts in cases where administrative remedies are available and are as likely as the judicial remedy to provide the wanted relief. It is the rule that if an administrative remedy is available, it must be exhausted even though the administrative remedy is couched in permissive language (Alexander v. State Personnel Board, 22 Cal.2d 198, 137 P.2d 433; Clark v. State Personnel Board, 61 Cal.App.2d 800, 144 P.2d 84; Child v. State Personnel Board, 97 Cal.App.2d 467, 218 P.2d 52). Understandably, a city employee is not required to file a grievance if he does not wish to do so, but he must first pursue this administrative remedy before resorting to the judicial process.

3. The city's grievance procedure is somewhat cumbersome, and in some cases partially regressive; for...