Rauber v. Herman

• Decision Date: 30 April 1991
• Docket Number: No. A048403,A048403
• Citation: 280 Cal.Rptr. 785,229 Cal.App.3d 942
• Court: California Court of Appeals Court of Appeals
• Parties: Martha RAUBER, et al., Plaintiffs and Appellants, v. Jerry R. HERMAN, as District Attorney, etc., et al., Defendants and Respondents.

Page 785

280 Cal.Rptr. 785

229 Cal.App.3d 942

Martha RAUBER, et al., Plaintiffs and Appellants, v. Jerry R. HERMAN, as District Attorney, etc., et al., Defendants and Respondents.

No. A048403.

Court of Appeal, First District, Division 3, California.

April 30, 1991.

Rehearing Denied June 3, 1991.

John F.K. Welch, Gary James Wood, Linda Earle Bertenthal, Legal Aid Soc. of Marin County, San Rafael, for plaintiffs and appellants.

Douglas J. Maloney, County Counsel, Mari-Ann G. Rivers, Deputy, San Rafael, for defendants and respondents.

STRANKMAN, Associate Justice.

Appellants Martha Rauber and Katherine Williams (plaintiffs) appeal from the dismissal of their complaint following the sustaining of a demurrer without leave to amend. We affirm.

I. Allegations of Complaint and Demurrer

The complaint alleged that plaintiffs are former and current recipients of assistance under the Aid to Families with Dependent Children program (AFDC) and food stamp program, and that they bring the action in their capacity as taxpayers to enjoin the expenditure of public funds in violation of governing state law. The complaint named as defendants Jerry R. Herman, the District Attorney for the County of Marin (hereafter the County); the Marin County Board of Supervisors; Dennis Brown, Director, Marin County Department of Health and Human Services; and Richard Arrows, Auditor-Controller for the County of Marin.

The complaint further alleged the following. Plaintiffs received notice from the County that the County had determined that they had received overpayments of benefits. Plaintiffs each filed a request for a fair hearing pursuant to Welfare and Institutions Code section 10950 ¹ et seq. to challenge the County's determination. Hearings were conducted at which the County was represented by the district attorney. The County has appointed a county counsel. Under Government Code sections 26529 and 27642, the district attorney may only discharge the duties of a public prosecutor, and representation of the County at an administrative fair hearing under section 10950, which is a civil proceeding, is not consistent with the duties of a prosecutor.

Plaintiffs sought a declaration that the district attorney's representation of the County in section 10950 hearings constituted a violation of Government Code sections 26529 and 27642, and injunctive relief on the ground the participation of the district attorney at these hearings constituted an illegal expenditure of public funds and violated their federal and state constitutional due process rights.

Defendants demurred to the complaint on the ground it failed to state facts sufficient to constitute a cause of action (Code Civ.Proc., § 430.10, subd. (e)) because as a matter of law the district attorney is not barred from participating in an administrative proceeding simply because it is characterized as a civil matter. They also demurred on the ground the complaint was uncertain in that it could not be ascertained on what basis plaintiffs contended the district attorney was exceeding the scope of his prosecutorial duties because participation in a civil proceeding falls within his duties as a prosecutor.

The trial court sustained the demurrer without leave to amend, stating in support of its ruling that (1) no statute or county ordinance prohibits the district attorney's presence from, or participation in, any proceeding solely because it is civil in nature; (2) there is a reasonable connection between administrative fair hearings under section 10950 which may involve suspected welfare fraud and the prosecution by the district attorney of welfare fraud cases; and (3) district attorney participation in section 10950 administrative fair hearings is in aid of and auxiliary to the enforcement of the criminal law and thus compatible with the nature and duties of the public prosecutor role.

II. Issues on Appeal

For the purpose of review of the sustaining of the demurrer without leave to amend, we deem true the factual allegations of the complaint, and determine whether plaintiffs pled facts showing they are entitled to some relief under any legal theory. (See Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1387, 261 Cal.Rptr. 240.) Where an allegation is contrary to law or to a fact of which the court may take judicial notice, it is to be treated as a nullity. (Ibid.)

The primary issue raised by the allegations of the complaint is whether the district attorney, in a county where there is an appointed county counsel, may represent the county or participate in any way in a section 10950 fair hearing, or whether such participation exceeds the role of public prosecutor in violation of Government Code sections 26529 and 27642.

The secondary issue is whether the district attorney's participation at the section 10950 hearing deprived plaintiffs of due process of law, independent of any violation of the Government Code.

III. Discussion

A. District Attorney's Role and Duties Established by Government Code. We first review the statutory and other authority establishing the specific role and duties of a district attorney. The district attorney is designated by statute as an officer of the county. (Gov.Code, § 24000, subd. (a).) The duties and restrictions imposed on a district attorney are prescribed by statute. (Gov.Code, § 26500 et seq.) Government Code section 26500 provides that "[t]he district attorney is the public prosecutor ... [who] shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses."

In addition to the role of public prosecutor, the district attorney is responsible for certain civil legal services specified in Government Code sections 26520 through 26528. For example, the district attorney must render legal services to local public entities as requested; prosecute or defend certain actions brought by or against the county auditor or treasurer; and prosecute actions for the recovery of debts, fines, penalties, and forfeitures; among other functions.

The statutory scheme narrowly enumerating the types of civil legal services which a district attorney may perform expresses the Legislature's general mandate that such officers not use their funds and powers to intervene in private litigation. (Safer v. Superior Court (1975) 15 Cal.3d 230, 237, 124 Cal.Rptr. 174, 540 P.2d 14.)

Government Code sections 26529 and 27642 further circumscribe the functions of a district attorney in counties which have a county counsel. Under these sections, the county counsel generally supplants the district attorney in the provision of civil legal services. (Harvey v. County of Butte (1988) 203 Cal.App.3d 714, 720, 250 Cal.Rptr. 65.) Government Code section 26529 provides that in counties which have a county counsel, "the county counsel shall discharge all the duties vested in the district attorney by Sections 26520, 26522, 26523, 26524, and 26526. The county counsel shall defend or prosecute all civil actions and proceedings in which the county or any of its officers is concerned...." Government Code section 27642 provides that whenever the board of supervisors appoints a county counsel pursuant to Government Code section 27640 (which is the case in Marin County), "he shall discharge all the duties vested by law in the district attorney other than those of a public prosecutor."

Notwithstanding Government Code sections 26529 and 27642, certain functions not amounting to the prosecution of a criminal offense may nevertheless fall within the ambit of the district attorney's prosecutorial role, and therefore may be performed by the district attorney even where there is a county counsel. As clarified by an opinion of the Attorney General: "Noncriminal actions are not necessarily 'civil actions' under [Government Code section 26529]. The courts have held in several instances that cases which might normally be considered civil are actually the responsibility of the district attorney. Primary responsibility for noncriminal actions or proceedings turns on whether they would be 'in aid of and auxiliary to the criminal law' (Board of Supervisors v. Simpson, 36 Cal.2d 671, 674 ) because the district attorney, as public prosecutor, must closely supervise transactions related to enforcement of the criminal law...." (38 Ops.Cal.Atty.Gen. 121, 122 (1961).) In Board of Supervisors v. Simpson (1951) 36 Cal.2d 671, 674, 227 P.2d 14, the court held the district attorney and not the county counsel had the responsibility to bring civil red-light abatement actions which were compatible with his duties as public prosecutor.

Thus, even in counties where there is a county counsel, "[i]t is ... clear that the district attorney's duties as public prosecutor embrace more functions than the prosecution of criminal actions." (64 Ops.Cal.Atty.Gen. 418, 422 (1981).) If such functions, though civil in nature, are closely related to and in furtherance of criminal law enforcement, then the district attorney may properly perform them. (Board of Supervisors v. Simpson, supra, 36 Cal.2d at p. 674, 227 P.2d 14; see 64 Ops.Cal.Atty.Gen. 826, 831 (1981).) For example, in People v. Superior Court (Aquino) (1988) 201 Cal.App.3d 1346, 248 Cal.Rptr. 50, this court held that the investigation and gathering of evidence relating to criminal offenses is a responsibility inseparable from the district attorney's prosecutorial functions, even though no criminal charges have been filed. (Id., at pp. 1349-1350, 248 Cal.Rptr. 50.)

B. Context of Section 10950 Hearing in Implementation of County Welfare Program. We next review the context and purpose of a section 10950 fair hearing in the administration of a county welfare program. Under the Welfare and Institutions Code, the State Department of Social Services (DSS) has plenary power over the administration of a county's AFDC program. (§§ 10600, 10815.) The California State...