Welfare Rights Organization v. Crisan

Decision Date28 April 1983
Docket NumberS.F. 24346
Citation190 Cal.Rptr. 919,661 P.2d 1073,33 Cal.3d 766
CourtCalifornia Supreme Court
Parties, 661 P.2d 1073, 31 A.L.R.4th 1214 WELFARE RIGHTS ORGANIZATION et al., Plaintiffs and Appellants, v. Horia CRISAN, as Director, etc., Defendant and Respondent.

Daniel L. Siegel, Michael R. Bush, Alan Lieberman and Andrew T. Holcombe, Chico, for plaintiffs and appellants.

Thomas V. Siporin, John Fillion, Jordan Rossen, Stephen P. Berzon, Michael Rubin, Fred H. Altshuler, Marsha S. Berson, Altshuler & Berson, H. David Grunbaum and Susan L. Bloom, San Francisco, as amici curiae for plaintiffs and appellants.

Delbert M. Siemsen, Oroville, and Daniel V. Blackstock, County Counsel, Chico, Leo A. Battle and Albrecht, Mims & Battle, Oroville, for defendant and respondent.

KAUS, Justice.

The issue is whether communications between welfare claimants and lay representatives authorized to represent them in administrative fair hearings under the aid to families with dependent children (AFDC) program are privileged. We conclude that they are.

The Butte County Social Welfare Department obtained a subpoena and a subpoena duces tecum directing Clayton Beltz, a Welfare Rights Organization worker, to testify and produce documents at an administrative fair hearing that had been requested by Marsha Levine and David Green. The information sought consisted of past communications between Beltz and Levine and Green "regarding legal advice" Beltz had given them in connection with an earlier AFDC fair hearing. Levine and Green had authorized Beltz to be their lay representative and had believed and intended their consultation with him in that capacity to be confidential.

Levine, Green, Beltz and the Welfare Rights Organization filed an action for injunctive and declaratory relief in superior court against Horia Crisan, as Director of the Butte County Social Welfare Department. The court issued a temporary restraining order enjoining defendant from seeking the evidence of the lay representative-client communications. Thereafter, however, it ruled that the communications were not protected by any evidentiary privilege, denied a preliminary injunction and sustained defendant's demurrer without leave to amend. This appeal is from the subsequent judgment of dismissal.

Plaintiffs contend that a privilege is constitutionally required and that the Evidence Code therefore cannot be read to preclude it. They base their argument on state and Fourteenth Amendment due process, as well as the federal Constitution's supremacy clause--arguing that certain federal regulations require a confidentiality privilege for authorized lay representative-client communications in connection with AFDC administrative fair hearings.

Evidence Code section 911 states the general rule: "Except as otherwise provided by statute: (a) No person has a privilege to refuse to be a witness. (b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object or other thing. (c) No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any writing, object or other thing." This rule applies to administrative hearings as well as court hearings. (evid.code, § 901.)

In section 911 of the Evidence Code, the Legislature clearly intended to abolish common law privileges and to keep the courts from creating new nonstatutory privileges as a matter of judicial policy. (Evid.Code, § 12, subd. (c); Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 125 Cal.Rptr. 553, 542 P.2d 977; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 539-540, 113 Cal.Rptr. 897, 522 P.2d 305.) Thus, unless a privilege is expressly or impliedly based on statute, its existence may be found only if required by constitutional principles, state or federal. As will appear, we conclude that in the situation we confront, a privilege comparable to the attorney-client is impliedly provided by statute. We therefore do not reach the question of whether it is also constitutionally required.

AFDC is a federal program in which states may participate by submitting a plan that conforms to the Social Security Act and federal regulations. (Burns v. Alcala (1975) 420 U.S. 575, 95 S.Ct. 1180, 43 L.Ed.2d 469.) The federal regulations set forth detailed requirements for state plans. Among these is one that the plan provide for a system of hearings which meets the due process standards articulated in Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 and other criteria detailed in the regulations. (45 C.F.R. § 205.10.) The conclusion we reach on the privilege question before us derives from the nature of those hearings as authoritatively prescribed.

In Goldberg, the United States Supreme Court held that AFDC recipients have a federal due process right to an evidentiary hearing before their benefits are terminated. Although the hearing need not take the form of a judicial trial, it must provide a meaningful opportunity to be heard. The recipient must be provided with timely and adequate notice detailing the reasons for the termination. To be meaningful, "the opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard." (Goldberg v. Kelly, supra, 397 U.S. at pp. 268-269, 90 S.Ct. at pp. 1020-1021.) Thus, recipients must be allowed to present their case orally since written submissions are an unrealistic option for most welfare recipients (id., at p. 269, 90 S.Ct. at p. 1021), and they must be given an opportunity to confront and cross-examine adverse witnesses. The court acknowledged the contributions to be made by counsel in delineating the issues, presenting the factual contentions in an orderly manner and conducting cross-examination; it therefore held that the recipient must be allowed to retain counsel if he so desires, though he need not be furnished with counsel. (Id., at p. 270, 90 S.Ct. at p. 1021.)

Although Goldberg spoke only of counsel, the federal regulations setting forth the requirements for state plans provide for lay representation as well. They state that every AFDC applicant or recipient "may be represented by an authorized representative, such as legal counsel, relative, friend or other spokesman, or he may represent himself." (45 C.F.R. § 205.10(a)(3)(iii).) This broad right of representation apparently is based upon recognition of the practical limitations on the ability of welfare recipients to obtain counsel. Generally they cannot afford to pay an attorney, and legal service organizations have never been able to meet all of the needs for free legal services.

Consistent with Goldberg and federal regulations, our statutes provide for a hearing with representation by counsel or by a lay person. Welfare and Institutions Code section 10950, enacted in 1965, states in pertinent part: "If any applicant for or recipient of public social services is dissatisfied with any action of the county department relating to his application for or receipt of public social services ... he shall, in person or through an authorized representative ... be accorded an opportunity for a fair hearing ...." (Emphasis added.) By using the term "authorized representative" rather than "counsel" or "attorney," the Legislature made it clear that claimants have a right to be represented by lay representatives as well as by members of the bar. 1

The term "authorized representative" signifies an expansion of the right of representation that previously had been accorded welfare claimants. Before the enactment of section 10950, the applicable statute (Welf. & Inst.Code, § 104.1) had provided: "At the hearing the applicant or recipient may appear in person with counsel of his own choosing, or in person and without such counsel." The substitution of "authorized representative" for "counsel" suggests that the Legislature recognized that attorneys alone could not satisfy the representational needs of the state's welfare claimants and that assistance through representation was necessary to insure the meaningfulness of the "fair hearing" right provided by statute.

We resist the temptation to enrich the legal literature by yet another panegyric to the attorney-client privilege and its vital importance to the effective administration of justice. 2 (See, e.g., Upjohn Co. v. United States, supra, 449 U.S. 383, 389-390, 101 S.Ct. 677, 682-683, 66 L.Ed.2d 584; Fisher v. United States (1976) 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39; People v. Meredith (1981) 29 Cal.3d 682, 690-691, 175 Cal.Rptr. 612, 631 P.2d 46; Barber v. Municipal Court (1979) 24 Cal.3d 742, 751-753, 157 Cal.Rptr. 658, 598 P.2d 818; People v. Canfield (1974) 12 Cal.3d 699, 705, 117 Cal.Rptr. 81, 527 P.2d 633; Holm v. Superior Court (1954) 42 Cal.2d 500, 506-507, 267 P.2d 1025; City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 234-235, 231 P.2d 26; American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 593, 113 Cal.Rptr. 561.) Suffice it to say that the considerations which support the privilege are so generally accepted that the Legislature must have implied its existence as an integral part of the right to representation by lay persons. Otherwise that right would, in truth, be a trap by inducing confidential communications and then allowing them to be used against the claimant. We do not attribute such a sadistic intent to the Legislature. 3

We said nearly 70 years ago: "[W]hatever is necessarily implied in a statute is as much part of it as that which is expressed." (Johnston v. Baker (1914) 167 Cal. 260, 264, 139 P. 86.) This principle has been applied many times. Examples are found in De Witt v. San Francisco (1852) 2 Cal. 289, 296 (legislation authorizing erection of courthouse necessarily embraces power to purchase land on which to erect it); State of California v. Poulterer (1860) 16 Cal. 514, 531 (where statute imposes obligation...

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