Interstate Brands v. Unemployment Insurance Appeals Board , 26 Cal. 3d 770 ( 1980 )

CLARK, J., Concurring.

Prior to the recent decision in Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335 [156 Cal.Rptr. 1, 595 P.2d 579], it was held that because article VI, section 1 of our state Constitution vested judicial power in the courts, a trial court reviewing an administrative decision affecting vested fundamental rights was required to exercise independent judgment on the evidence unless the Constitution vested limited judicial power in the agency. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44-46 [112 Cal.Rptr. 805, 520 P.2d 29].) If the agency’s decision did not affect a vested fundamental right or if the Constitution had vested the agency with judicial power, the trial court’s inquiry was limited to the customary test for determining whether the agency findings are supported by substantial evidence in light of the whole record. (Id., at pp. 44-45.)

In Tex-Cal Land Management, Inc. we held that the Legislature could properly provide for substantial evidence review of a statewide agency “whether or not the California Constitution provides for that agency’s exercising ‘judicial power.’” (24 Cal.3d at pp. 342-346.) By upholding the legislative power to establish substantial evidence review, we rejected the constitutional basis for the independent judgment rule.¹

Code of Civil Procedure section 1094.5 provides for both substantial evidence and independent judgment review, leaving the choice of standard to the courts. (Id.) Under the statutory authorization, we must determine through “judicially fashioned rules of procedure or in interpretation of section 1094.5” (24 Cal.3d at p. 345) when independent judgment review is warranted.

The existing test for independent judgment review—vested fundamental right—was based on the asserted constitutional limitation on exercise of the judicial power. Since the asserted constitutional limitation has been rejected, the test of vested fundamental right should no longer be controlling. Rather, in fashioning our rule for independent judgment review we should consider not only the rights involved but also the beneficial purposes of administrative adjudication. They include special expertise, simplified procedure permitting economical and speedy determination and the tribunals’ often unique abilities—due to staffing, experience, and procedure—to operate as policy-making bodies implementing legislative will. (Jafife, Judicial Control of Administrative Action (1965) pp. 25-26; cf. 1 Davis, Administrative Law Treatise (2d ed. 1978) § 2.13.) We must weigh any impairment of those beneficial purposes resulting from independent judgment review together with the right involved in determining whether to adhere to independent review as a judicial rule.

However, the instant case is not a proper vehicle to determine whether substantial evidence review is warranted notwithstanding the contentions as to vested fundamental rights. The judgment in the instant case was entered prior to our Tex-Cal Land Management Inc. decision, and the parties have not briefed the issue whether our rejection of the constitutional basis of the independent judgment rule warrants our making an exception to the vested-fundamental-right basis for such review.

I concur in the majority opinion insofar as it holds that, under the test of vested fundamental right, independent judgment review was appropriate in the instant case.

Newman, J., concurred.

1 While dissenting in Tex-Cal Land Management Inc. on an issue not relevant here, I expressly concurred in the majority’s conclusions as to the scope of review. (24 Cal.3d at p. 356.)