Civil Service Commission v. Superior Court

63 Cal. App. 3d 627, 133 Cal. Rptr. 825, 1976 Cal. App. LEXIS 2115

• Court: California Court of Appeal
• Decided: November 9, 1976
• Docket: Civ. 48708
• Status: Published

Opinions

Opinion

THOMPSON, J.

In Ferguson v. Keays (1971) 4 Cal.3d 649 [94 Cal.Rptr. 398, 484 P.2d 70], our Supreme Court held that there is an inherent judicial power to waive filing fees on appeal upon a showing of the appellant’s indigency but expressly did not decide “the question whether indigents must be given funds by the county or some other source in order to pay transcript fees, publication costs, or other similar third-party charges.” (4 Cal.3d at p. 654.) About three years after Ferguson, the Supreme Court denied hearing in Leslie v. Roe (1974) 41 Cal.App.3d 104 [116 Cal.Rptr. 386], which holds that indigency does not entitle a party to a civil action to a transcript prepared at public expense to aid him in appealing an unfavorable judgment. (41 Cal.App.3d at p. 107.) The matter at bench involves the application of the Leslie rule in the context of the right of añ’ihdigent person seeking judicial review of an administrative determination to a transcript of the administrative record at the expense of the agency where that transcript is required so that the reviewing court may exercise its independent judgment of the evidence as required by Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44-45 [112 Cal.Rptr. 805, 520 P.2d 29],

Recognizing that there may be very good reasons for a contrary result, we conclude that compelling precedent dictates that a court is without power to order that an indigent person seeking judicial review of the administrative proceeding involving an economic interest be supplied with a transcript of the proceedings at the expense of the agency. Accordingly, we issue a peremptory writ overturning a trial court order directing the agency to furnish such a transcript.

Ronald Price was employed as a tram operator in a juvenile facility of the Los Angeles County Probation Department. Charged with assault with a deadly weapon upon his wife, Price pleaded guilty to the charge. On November 25, 1974, he was given notice that he was discharged from the county civil service. Price requested a hearing on the charge against him. The hearing was conducted by a hearing officer of the Los Angeles County Civil Service Commission who determined that Price had in fact assaulted his wife with a deadly weapon, but that there were mitigating circumstances which rendered the discharge of Price from the civil service inappropriate. The commission, without an independent review of the evidence from a transcript or otherwise, adopted the findings of the hearing officer with respect to the assault but rejected his conclusion of mitigation. It ordered Price discharged.

Pursuant to Code of Civil Procedure section 1094.5, Price filed his action in administrative mandate seeking to set aside the holding of the commission. The petition asserts that the decision of the commission must be reversed because: (1) the agency failed to follow its own rule 5.14 when it declined to accept the hearing officer’s report without holding a de novo hearing or reading the record of proceedings before the hearing officer; (2) the decision of the commission is not supported by substantial evidence; and (3) the penalty imposed by the commission is excessive.

Price filed a motion in the trial court asking that the commission be directed to supply him with a transcript of the proceedings before the hearing officer. The motion is accompanied by a declaration of indigency and counsel’s declaration of merit satisfying the procedural requirements set forth in Ferguson v. Keays, supra, 4 Cal.3d 649, 657-659. The superior court in which the petition for writ of mandate was pending granted the motion and ordered that the commission “provide [Price], free of charge, a copy of the Reporter’s Transcript of the Civil Service Commission hearing at issue.”

The commission sought a writ of mandate or prohibition from this court to overturn the superior court’s order on the motion. We issued our alternative writ.

The process of judicial review of administrative proceedings encompassed in Code of Civil Procedure section 1094.5 is a codification of certiorarified mandamus judicially adopted by our Supreme Court in Dare v. Bd. of Medical Examiners (1943) 21 Cal.2d 790 [136 P.2d 304], (Kleps, Certiorarified Mandamus (1950) 2 Stan.L.Rev. 285; Kleps, Certiorarified Mandamus Reviewed (1960) 12 Stan.L.Rev. 554.) The Dare court, while denominating the process one in mandate, adopted its certiorari test of review in the form of a limited trial de novo based upon the administrative record. (21 Cal.2d at pp. 798-801.) Our Supreme Court Has also ruled, in I.X.L. Lime Co. v. Superior Court (1904) 143 Cal. 170 [76 P. 973], that the petitioner seeking a writ of certiorari has the burden of paying the fee for preparation of the transcript necessary for review. (See also Fickeisen v. Civil Service Com. (1950) 98 Cal.App.2d 419, 420-421 [220 P.2d 605].) The burden is thus the same as that imposed on any civil litigant in need of a transcript on appeal. That litigant’s indigency does not yet excuse his payment of the transcript’s cost. (See Leslie v. Roe, supra, 41 Cal.App.3d 104, petn. for hg. den.)

Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937] dictates unequivocally that we follow the rule enunciated by the high court. There is no exception in Auto Équity Sales for Supreme Court cases of ancient vintage. If I.X.L. Lime Co. does not comport with the standards of review required by Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d 28, 44-45, where the party seeking judicial review is indigent, that proposition is not ours to announce.

Crespo v. Superior Court (1974) 41 Cal.App.3d 115 [115 Cal.Rptr. 681], upon which Price relies for a contrary result, is distinguishable from the case at bench. Crespo holds that Civil Code section 237.5’s provision for government-supplied counsel to indigent parents appealing from an order depriving them of custody of children implies a right to a trial transcript at government expense so that counsel may effectively do his job. (See also Gardiana v. Small Claims Court (1976) 59 Cal.App.3d 412 [130 Cal.Rptr. 675], court’s power to appoint an interpreter per Evid. Code, § 752 authorizes the court to require the interpreter to be paid at public expense where the party requiring the interpreter is indigent.) Here there is no statute upon which we can rely to reach a result contrary to the principle adopted by our Supreme Court.

Price also asserts that due process and equal protection of the law require that he be supplied with a free transcript in view of his indigent status. Authority is to the contrary where the interest which an appeal seeks to protect is an economic one. (Ortwein v. Schwab (1973) 410 U.S. 656, 659 [35 L.Ed.2d 572, 575, 93 S.Ct. 1172]; United States v. Kras (1973) 409 U.S. 434 [34 L.Ed.2d 626, 93 S.Ct. 631].)

Finally, Price argues that Code of Civil Procedure section 1094.5 by its terms authorizes the action taken by the trial court. Section 1094.5 does state: “All or part of the record of the [administrative] proceedings . . . may be filed with the petition, may be filed with respondent’s points and authorities or may be ordered to be filed by the court. If the expense of preparing all or any part of the record has been borne by the prevailing party, such expense shall be taxable as costs.” Here, however, the superior court did not order the administrative record filed with it. Rather, it ordered that the transcript be supplied by the agency to Price. We thus do not reach the issue of the extent of power which section 1094.5 vests in the trial court to order that the agency cause the record of proceedings before it to be transcribed and the transcript filed.¹

Bound by I.X.L. Lime, we conclude that the trial court was without power to order that Price be supplied with a copy of a transcript of the administrative hearing prepared at the agency’s expense. Let a peremptory writ of mandate issue directing the superior court to vacate its order of April 22, 1976, and to enter a new order denying Price’s motion for a transcript.

Lillie, Acting P. J., concurred.

1 We note that language in Dare v. Bd. of Medical Examiners, supra, 21 Cal.2d 790, states in effect that the primary responsibility for presentation of the administrative record to the reviewing court is upon the agency and that the agency “should have [the record] available for the benefit of the court [at trial].” (21 Cal.2d at p. 798.) We note also that Government Code section 11523, adopted as part of the Administrative Procedures Act (APA) by the same legislative session which enacted section 1094.5, provides that the agency shall prepare and deliver a transcript of its hearing to the person seeking judicial review only after that person pays for it. The issues of whether the Dare language is incorporated by inference in section 1094.5 of the Code of Civil Procedure and whether the companion enactment of section 1094.5 and Government Code section 11523 indicates a different burden of cost of a transcript in APA and non-APA cases should, in our judgment, be decided in a case where the issues are ripe on the record.