Opinion
12-6-1954
Harrlet Jane BERTCH et al., Petitioners and Appellants, v. SOCIAL WELFARE DEPARTMENT OF THE STATE of California, Respondent. Civ. 16056.
Howard B. Crittenden, Jr., San Francisco, for appellants. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., for respondent.
Harrlet Jane BERTCH et al., Petitioners and Appellants,
v.
SOCIAL WELFARE DEPARTMENT OF THE STATE of California, Respondent.
Dec. 6, 1954.
Rehearing Denied Jan. 5, 1955.
Hearing Granted Feb. 2, 1955.
Prior opinion, 272 P.2d 538.
Howard B. Crittenden, Jr., San Francisco, for appellants.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., for respondent.
NOURSE, Presiding Justice.
This is an appeal from a judgment of the superior court denying a petition for a writ of mandate to review an administrative order of the state Social Welfare Board. The only allegation in the petition which states a cause of action is: 'That said defendant Board on January 17th, 1952, made its own findings, not the findings of the Hearing Officer, Division of Administrative Proceedings who heard said appeals, which are contrary to the evidence adduced therein, and against the weight of the evidence; that said plaintiffs were and are receiving necessities of life to the extent of $17.00 per month, and no more, from their religious society, there being no legal responsibility or obligation of said religious society to so provide said necessities * * *'
The admitted facts are that all the appellants belonged to a society named Christ's Church of the Golden Rule which demanded and received all the warrants issued by the State under the old age pension law and paid out to the pensioners such sums for their support as the society determined was necessary. Although all these facts are admitted on this appeal they were not admitted before the hearing officer of the state agency or on the appeal from his decision to that agency. This presents the only material ground on this appeal.
Preliminarily it should be said that there is no issue of religious discrimination involved in any stage of the proceedings and that the repeated efforts of the appellants to make that an issue are unconscionable and unfair to the state agency and to the superior court. In a memorandum opinion the learned trial judge stated: 'The facts as disclosed by the entire record indicate that the action of the Social Welfare Board is not based on any religious ground whatsoever.' Manifestly the issues do not relate to any question of religion in any form--no more than if the appellants were members of a tribe of Indians or of a fraternal or social group which appropriated the warrants from the State for its own use and benefit and cared for the individuals as it saw fit.
The sole issue in this appeal is whether the state board committed substantial error in changing the findings of the hearing officer on the question of 'need' without giving the appellants notice and an opportunity to be heard. These findings--numbered V, VI and VII--went directly to the controlling issue of whether the appellants were in need of financial support from the State. They were all changed by the state board without notice to or appearance by any of the appellants.
Section 11517(b) and (c) of the Government Code reads: '(b) If a contested case is heard by a hearing officer alone, he shall prepare a proposed decision in such form that it may be adopted as the decision in the case. A copy of the proposed decision shall be filed by the agency as a public record. The agency itself may adopt the proposed decision in its entirety, or may reduce the proposed penalty and adopt the balance of the proposed decision. '(c) If the proposed decision is not adopted as provided in subdivision (b) each party shall be furnished with a copy of the proposed decision. The agency itself may decide the case upon the record, including the transcript, with or without taking additional evidence, or may refer the case to the same or another hearing officer to take additional evidence. If the case is so assigned to a hearing officer he shall prepare a proposed decision as provided in subdivision (b) upon the additional evidence and the transcript and other papers which are part of the record of the prior hearing. A copy of such proposed decision shall be furnished to each party. The agency itself shall decide no case provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the agency itself. If additional oral evidence is introduced before the agency itself no agency member may vote unless he heard the additional oral evidence.'
If these findings of the Welfare Board had been properly made they would have ended the controversy because the need of the individual is the criterion by which the liability of the State must be determined. This is so because section 31 of article IV of the Constitution prohibits the grant of any public money 'to any individual'. To enable the State to care for 'aged persons in indigent circumstances' section 22 of article IV of the Constitution was enacted. In the federal Social Security Act the Congress likewise provided for assistance 'to aged needy individuals'. 42 U.S.C.A. § 301.
It is the contention of the appellants that the proceedings before the agency were governed by these provisions of the statute and that, since no new hearing was given the applicants before the findings were modified, they were denied their constitutional rights. The respondent does not concede that these provisions of the act are controlling. It is the contention of respondent that it is only when 'a contested case is heard by a hearing officer alone' that he may make a final decision binding on the agency; that this power of the hearing officer relates only to the renewal and revocation of licenses to institutions for the care and maintenance of children and aged persons. Sections 1624, 1625, 2304, 2305, 2355 and 2356 of the Welfare and Institutions Code.
It necessarily follows that in this instance the hearing officer sat wholly as a referee with his power limited to that of making a 'report' to the agency which alone had the power to make a 'final decision.' See section 104.5, Welfare and Institutions Code which controls here. The presumption of regularity must follow that decision. And the appellants do not contend that it is not supported by substantial evidence. That, in truth, is the real basis upon which the final decision of the agency may be attacked.
The board's findings numbered V, VI and VII, which we hold to be controlling on this appeal, read as follows: 'V 'That to the extent that any of the appellants were in need within the meaning of the Old Age Security Law, they were so as a result of a continuing voluntary acceptance of lower standards of living in accordance with their adherence to the precepts of Christ's Church of the Golden Rule and their entrance into 'the religious apostolic society form of living.' 'VI 'That all or a major portion of any grant of Old Age Security made to the appellants would not be devoted to meeting their individual and personal needs as those needs are defined by the Welfare and Institutions Code and the Manual of Policies and Procedures of the State Department of Social Welfare, but would, on the contrary, be devoted systematically and continuously to the advancement of the objectives of Christ's Church of the Golden Rule. 'VII 'That none of the appellants is or since January 20, 1948, has been under any so-called 'life care' contract whereby gifts or transfer of property were made to be used for the support, maintenance, or care of the donor thereof.'
These findings expressly negate the existence of financial need which is the only basis upon which an award could have been made.
Other questions raised do not merit comment.
Judgment affirmed.
KAUFMAN, J., concurs.
DOOLING, Justice.
I dissent. The basic question presented by this record is whether an aged person otherwise in every way qualified to receive old age assistance is disqualified because he voluntarily elects to contribute all of his income ot the church of his choice above an amount necessary to support him at a bare subsistence level. I pass the question whether in holding that he is, the Social Welfare Board is engaging in religious discrimination, but I cannot agree that the argument that it is doing so is 'unconscionable and unfair.' I believe that there is certainly reasonable room for the argument that to deny an applicant old age assistance solely because his religious belief moves him to contribute more generously to his church than is generally customary does constitute discrimination on the grounds of religion.
My associates lend a color of coercion to the facts by stating that the church of the appellant's choice 'demanded and received all the warrants issued by the State * * * and paid out to the pensioners such sums for their support as the society determined was necessary.' The truth is that appellants because of their religious belief and adherence to the church of their choice voluntarily contribute to the church all of their income and receive back from the church what is deemed necessary for their subsistence according to the tenets of the church. It is not claimed that they could not leave the church tomorrow if their religious belief was changed. Ironically if they did leave the church their right to old age assistance would not be questioned even if they continued to live on $17 per month and improvidently squandered the balance.
Section 2160, Welfare and Institutions Code is mandatory: 'Aid shall be granted under this chapter to any person who comes within all of the following descriptions * * *.' There is nowhere pointed out in the record, briefs or majority opinion any particular in which these appellants fail to meet the requirements of that section, and in fact they meet all of them.
It is argued only that, because they will elect to contribute a large part of their old age pensions to their church, to give them the pension would constitute an unconstitutional gift of public money. The legislature has determined that every person of the prescribed age who meets the prescribed qualifications shall receive at least a minimum amount fixed by the legislature. Welfare and Institutions Code, sec. 2020. Our Supreme Court said in County of Los Angeles v. La Fuente, 20 Cal.2d 870, 875, 129 P.2d 378, 381, that 'the 'need' of the applicant necessary to qualify for the benefits of the law is defined by the Legislature * * *.' It cannot be claimed that the minimum benefit fixed by the legislature is an unreasonable amount to be allowed to all applicants who qualify and hence the legislative determination meets the constitutional test.
The individual recipients of the old age pension are allowed a freedom in its expenditure compatible with basic human dignity and respondent itself has recognized this in its Manual of Policies and Procedures, Sec. A 140: 'No provision of the O. A. S. Law requires or purports to require that income received by any person, whether a recipient of aid or one who has been a recipient of aid, shall be expended by that person for particular purposes or in particular amounts.'
Once the authorities begin to police the manner in which the recipients of old age assistance shall spend their income, and that is what they are attempting here, there is no limit to their possible inquiries: Shall A be allowed to give $10 per month for Korean relief or should his pension be reduced $10 per month because he does so? Shall B be allowed to keep a dog which eats $5 worth of meat per month, or C permitted to contribute $1 per week when the collection box is passed in his church on Sunday? Or indeed shall a member of 'a tribe of Indians' who prefers to live in a cave and eat only what his fellow tribesmen supply to him be denied his pension because his religious belief moves him to spend it on religious tribal ceremonies? Better restore the poor house, with all of its indignities, than to add to the present system a new set of indignities not authorized by the law and more appropriate to a police state than to a democracy.