Dissenting. — In 1965, two decades after enactment of the California Administrative Procedure Act, the Legislature spoke as follows: “The applicant [in cases such as this], under the provisions of Section 1094.5 of the Code of Civil Procedure, [may seek] a review of the entire proceedings in the matter, upon questions of law involved in the case.” (Welf. & Inst. Code, § 10962; italics added.)
What was meant by the words “questions of law”? I infer that the drafters used them to express their view that, in these disability cases, a superior court was not “authorized by law to exercise its independent judgment on the evidence” (Code Civ. Proc., § 1094.5, subd. (c)). If instead the intent had been to delegate to judges the decision whether to (1) exercise independent judgment, or (2) search for substantial evidence, the draft simply would have read, “The applicant . . . , under the provisions of Section 1094.5 of the Code of Civil Procedure, [may seek] a review of the entire proceedings in the matter.” That bobtailed version would have justified the trial judge’s analysis here; it also would have, justified the contrary analysis favored in this court’s majority opinion.
The Legislature did not, however, say that judges could choose. Rather it added a clause that I think was intended to authorize judicial review “[only] upon questions of law involved in the case.” What are *182questions of law? Innumerable opinions of this court and other courts have stressed that those questions differ from questions of fact. To decide, pursuant to section 1094.5, subdivision (c), that “findings are not supported by the weight of the evidence [including, e.g., findings as to conflicting testimony]” is to decide questions of fact, not law.
Is there any authority, anywhere, suggesting that such a decision does not involve a question of fact? (Compare § 1094.5, subd. (a), which limits mandate to “a proceeding in which . . . evidence is required to be taken and discretion in the determination of facts is vested in the [agency].” (Italics added.) See too Bertch v. Social Welfare Dept. (1955) 45 Cal.2d 524, 529 [289 P.2d 485]: “Petitioners .. . argue that they should have been given a trial de nova in the superior court. In other words, it is contended that the trial court should have based its decision on the facts as well as the law.”)
Questions of law include “whether the respondent [the agency] has proceeded without, or in excess of jurisdiction; whether there was a fair trial . .. [whether] the respondent has not proceeded in the manner required by law, [and whether] the order or decision is not supported by the findings” (Code Civ. Proc., § 1094.5, subd. (b)).
What about the question whether “the findings are . . . supported by substantial evidence in the light of the whole record” (§ 1094.5, subd. (c))? That, I submit, is a question of law; and there is no hint that in 1965 the Legislature would have disagreed. The overriding rule affecting decisions by an agency, a jury, or a trial judge — throughout the United States and in our state, too — is that reviewing courts (who only on rare occasions reweigh the evidence) traditionally and consistently ask whether findings are supported by substantial evidence, a question of law.
There seems to be no evidence whatever, in text or legislative history, to indicate that the Legislature did not intend “to repudiate one line of decisions” in the somewhat confused welfare cases. (Cf. maj. opn., ante, p. 174, first ¶.) Three little words in a statute (“questions of law”) surely are to be preferred over the incessant litigants’ parade to this court — a parade that perhaps soon may be memorialized for nearly a half-century’s insistence (i.e., prior to Tex-Cal Land Management, Inc. v. Agriculture Labor Relations Bd. (1979) 24 Cal.3d 335 [156 Cal.Rptr. 1, 595 P.2d 579]) that (1) each right-privilege borderline be confronted judicially (with demonstrable frequency in this court), and *183“intrusion” by the Legislature be strictly scrutinized. Section 1094.5 law differs greatly from equal protection law, and I believe we should respond to arguably ambiguous commands of the Legislature as allies, not as strict-scrutiny antagonists.1
Richardson, J., and Kaus, J., concurred.
do not agree that all the cases cited at the middle of page 171, ante, of the majority opinion conclude that substantial evidence review “is appropriate because the applicant .. . does not have a vested right” (p. 171, ante). I read Henderling v. Carleson (36 Cal.App.3d at p. 567 [111 Cal.Rptr. 612]) as relying on Welfare and Institutions Code section 10962; and its words were quoted in both Repko and Ferreira. Bertch and County of Contra Costa were decided prior to the enactment of section 10962. The statute was neither discussed nor cited in the leading case, Harlow v. Carleson (1976) 16 Cal.3d 731 [129 Cal.Rptr. 298, 548 P.2d 698].