Opinion
Page __
__ Cal.App.2d __ 288 P.2d 127 Francis W. KEELER, Petitioner, v. SUPERIOR COURT of the State of California, in and for the COUNTY OF SACRAMENTO, the State Personnel Board of the State of California, Ford A. Chatters, president and member thereof, Emery E. Olson, Robert D. Gray, Glenn R. Baker, and Wilmer W. Morse, members thereof, and the Department of Fish and Game of the State of California, Respondents. Civ. 8841. California Court of Appeals, Third District Sept. 29, 1955Rehearing Denied Oct. 28, 1955.
Hearing Granted Nov. 23, 1955.
Opinion vacated 297 P.2d 967.
[288 P.2d 128] James H. Phillips and Timothy W. O'Brien, Sacramento, for petitioner.
Edmund G. Brown, Atty. Gen., Ralph W. Scott, Deputy Atty. Gen., for real party in interest.
SCHOTTKY, Justice.
Petitioner above named, a hunter and trapper in the Department of Fish and Game, filed in the Superior Court a petition for a writ of mandate to set aside the punitive action of the State Personnel Board in suspending him for a period of ten days without pay because of his refusal to take part in a creel census. The reason given by petitioner for his refusal was that the counting of fish is outside of his civil service classification as a hunter and trapper and comes properly within the classification of another bureau of the Department of Fish and Game, namely, the bureau of inland fisheries. Respondent Personnel Board's demurrer to the petition was overruled by the court and thereafter respondent Board filed an amended return in which it set forth the additional defense that the assignment of petitioner to the creel census was in the nature of an emergency and therefore justified. Thereafter, respondent Personnel Board made a motion in the Superior Court to refer the matter back to the said Personnel Board for consideration of the further defenses interposed by respondent Board in its amended return. The Superior Court granted said motion and ordered that 'the said matter be referred to the said State Personnel Board for such further proceedings on said affirmative defenses as said Board may deem proper.'
Petitioner then filed in this court a petition in which he sought a writ prohibiting the respondent Personnel Board from further proceedings under said order of said Superior Court and a writ of mandate commanding respondent Superior Court to hear and determine the petition of petitioner filed in said court. We issued orders to show cause, a return was filed by respondents, and following oral argument and the filing of briefs by the respective parties the matter was submitted.
Petitioner contends that the order made by the respondent Superior Court was in excess of the jurisdiction of that court and that said court only had jurisdiction to determine whether petitioner is entitled to a writ of mandate based upon the transcript of the evidence before the respondent Board and the facts that are the subject of judicial notice. He argues that the court had no jurisdiction to permit respondent State Personnel Board and/or respondent Department of Fish and Game to introduce evidence to the effect that the action of the Board might be justified by evidence not in the record. We agree with this contention of petitioner.
The review of an administrative order by means of mandamus is governed by section 1094.5 of the Code of Civil Procedure which provides:
'* * * (b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.'
Subsection (e) of said section 1094.5 provides:
'The court shall enter judgment either commanding respondent to set [288 P.2d 129] aside the order or decision, or denying the writ. Where the judgment commands that the order or decision be set aside, it may order the reconsideration of the case in the light of the court's opinion and judgment and may order respondent to take such further action as is specially enjoined upon it by law but the judgment shall not limit or control in any way the discretion legally vested in the respondent.'
It is clear from the record in the instant proceeding that after petitioner was suspended he appealed to the respondent State Personnel Board from said suspension and that a full hearing was held before a hearing officer of said Board and that thereafter the Board rendered a decision denying the appeal and affirming the action of the Director of the Department of Fish and Game in suspending petitioner. Petitioner then filed his petition for a writ of mandate in the Superior Court as hereinbefore set forth.
Respondent State Personnel Board is a statewide administrative agency deriving its powers from Article XXIV of the State Constitution. Under the authority of this article the said Personnel Board acts in a judicial capacity and there is vested in the Board authority over dismissals, suspensions and other punitive actions. Decisions of the State Personnel Board may be reviewed either by certiorari or by writ of mandate but in such review the court is bound by the subsections of section 1094.5 of the Code of Civil Procedure hereinbefore set forth. Boren v. State Personnel Board, 37 Cal.2d 634, 234 P.2d 981; Genser v. State Personnel Board, 112 Cal.App.2d 77, 245 P.2d 1090. The court is bound by the substantial evidence rule. It can review for errors of law, can review to determine if petitioner received a fair trial, can review to determine questions of the admissibility of evidence, and various other matters as set out in section 1094.5. But the authority of the court is limited by the provisions of said section 1904.5 and it is not entitled to exercise its independent judgment as to the weight of the evidence, as shown by the record of the proceedings before the State Personnel Board.
The rule is aptly stated in an article called 'Certiorarified Mandamus' appearing in Vol. 2, Stanford Law Review, at page 285. In this article at page 300 the following statement is made:
'The problems surrounding the introduction of additional evidence in the reviewing court and the function of the reviewing court in evaluating the evidence in the administrative record are relatively well defined in Code of Civil Procedure, Section 1094.5, and in certain recent court decisions provided it can be determined whether the particular administrative decision falls into the limited review category or the plenary review category. If the limited review category is involved (represented by the local agencies, statewide agencies with constitutional powers, and state-wide agencies dealing with something less than 'property rights') the principles which applied under the writ of certiorari are controlling. No additional evidence may be introduced before the reviewing court, and the court has no authority to do more than investigate whether there is substantial evidence to support the administrative determination. * * *'
The effect of the order made by respondent Superior Court in the instant case was to permit the respondent Fish and Game Commission and respondent State Personnel Board to introduce additional evidence before the Personnel Board. We are satisfied that such an order was in excess of the power of the court and that the proper function of the respondent court was to proceed to hear the petition on its merits and upon the record before the Personnel Board. As was stated in the case of Housman v. Board of Medical Examiners, 84 Cal.App.2d 308, at page 313, 190 P.2d 653, at page 655, 192 P.2d 45 (hearing denied):
'While petitioner was not entitled to a trial de novo, he was entitled to a [288 P.2d 130] formal hearing on the record of the administrative board. The record was in court, brought and filed there pursuant to the demand in the order to show cause as authorized by section 1094.5 of the Code of Civil Procedure. On the hearing of the order to show cause it was not necessary, as claimed by petitioner, that an answer to the petition be filed, in order for the court to determine the matters presented by the order. Brown v. Superior Court, 70 Cal.App. 732, 234 P. 409. Under subdivision (c) of section 1094.5, the court is limited to a determination of whether the board's findings are 'supported by substantial evidence in the light of the whole record.' The court must then, if the record is present, on the hearing of the order to show cause, examine the record. This does not mean that the entire board record must necessarily be read in open court; but a fair and full opportunity must be given petitioner to point out in the record the matters that he claims show the arbitrary action of the board. The petitioner, however, is not entitled to offer evidence, nor submit to the court anything which was not before the board. If the board improperly excluded evidence, and the court, having in mind that the petitioner must affirmatively prove rehabilitation, determines that such evidence was necessary to a complete determination by the board of the application, then the case would have to be returned to the board to consider that evidence.'
Petitioner herein was entitled to have his petition heard and determined by the respondent Superior Court on its merits and upon the record before the respondent Personnel Board. To order the matter sent back to the respondent Personnel Board to take evidence upon an issue that was not raised or urged upon the hearing before the State Personnel Board was beyond the power of the respondent Superior Court and contrary to the procedure set forth in section 1094.5. We therefore conclude that the court erred in making said order and that the motion should have been denied. We conclude further that the court should proceed to hear and determine the petition of petitioner upon its merits.
No other points raised require discussion.
Let a writ issue prohibiting respondent State Personnel Board from further proceedings under the order of respondent court and commanding respondent Superior Court to proceed to hear and determine the petition of petitioner upon its merits.
VAN DYKE, P. J., and PEEK, J., concur.