Alexander v. State Personnel Bd. of Cal.

TRAYNOR, J.

I dissent. The majority opinion holds that applications for administrative rehearings permitted by statute but not expressly required as a condition precedent to redress in the courts, are in effect required by the rule calling for exhaustion of administrative remedies. At the same time it acknowledges the possibility of exceptions where a rehearing would not constitute an adequate remedy, thus introducing a perennial question for litigation and judicial determination. Determinations might prove necessary not only for each administrative body in the state but for each new question that arose before it.

Such litigation could be avoided by an unequivocal rule that applications for rehearing permitted by statute are invariably compulsory before resort to the courts. So inflexible a rule, however, would take no account of the endless variations in the administrative bodies throughout the state. They vary in accessibility, formality of procedure, regularity of meetings, personnel, volume of work, the making and keeping of records, and dispatch of business. Situations constantly arise where one or more of these factors would make it impossible for an administrative rehearing to be an adequate remedy. To demand compliance with an administrative determination pending such a hearing might work great hardship, as in the ease of suspension of licenses. On the other hand, to postpone compliance until the decision following rehearing might work great harm, as in the case of the continuation of practices inimical to public health and morals.

It is my opinion that there is greater wisdom in the rule that applications for administrative rehearings are not prerequisite to judicial remedies unless so prescribed by statute. (Prendergast v. New York Telephone Co., 262 U.S. 43, 48 [43 S.Ct. 466, 67 L.Ed. 853]; Banton v. Belt Line Ry. Corp., 268 U.S. 413, 416 [45 S.Ct. 534, 69 L.Ed. 1020]; United States v. Abilene & So. Ry. Co., 265 U.S. 274, 282 [44 S.Ct. 565, 68 L.Ed. 1016]; Columbia Ry., Gas & Elec. Co. v. Blease, 42 F.2d 463, 465; Pender County v. Garysburg Mfg. Co., 50 F.2d 732; Canadian River Gas Co. v. Terrell, 4 F.Supp. 222; see Birch v. County of Orange, 186 Cal. 736, 742-745 [200 P. 647].) Under such a rule the Legislature, to which the task appropriately falls, would select the administrative bodies whose functions and procedure insure the fitness of a requirement that applications for rehearing precede resort to the courts. In this wise it has already selected the Railroad Commission (Public Utilities Act, sec. 66) and the Industrial Accident Commission (Labor Code, sec. 5901). (Carlson v. Railroad Commission, 216 Cal. 653 [15 P.2d 859]; Albin v. Railroad Commission, 216 Cal. 655 [15 P.2d 860]; Palmero Land & Water Co. v. Railroad Commission of California, 227 F. 708.) There is nothing in Abelleira v. District Court of Appeal, 17 Cal.2d 280 [109 P.2d 942, 132 A.L.R. 715], that would preclude the adoption of such a rule. That case was concerned, not with the rehearing question, but with the application of the general rule of exhaustion of remedies to the prosecution of an appeal to a commission from an adjustment unit thereof. The eases applying the exhaustion of remedies rule “where the administrative procedure prescribes a rehearing” (p. 302) were invoked merely to dispose of the contention that the rule should not apply on the ground that the commission’s earlier decisions in similar cases would render appeal futile.