Scates v. Rydingsword

KLINE, P. J., Dissenting.

By permitting the county to decide for itself whether relief it affords its indigent citizens is mandated by state statute or discretionary, the majority emasculates the safety net constructed by the *1104Legislature to protect the neediest citizens. The majority opinion, which ignores both the record and the law, is destined to cause endless mischief.

As will be seen, I disagree with the majority about two things: First, I believe a county’s provision of shelter for homeless persons must be presumed to address the minimum subsistence needs of “indigent persons,” as required by Welfare and Institutions Code section 17000.1 I find it hard to imagine that in providing shelter to people who have none a county may “go beyond the section 17000 minimum subsistence needs of the indigent,” as the majority suggests. (Maj. opn., ante, p. 1102, fn. 11.) If it is claimed that the provision of shelter was intended for some other, discretionary, purpose, and if this intention matters, the county ought at least be required to disclose its inapparent objective. Much more fundamentally, I also disagree with my colleagues’ theory that the county’s intention to comply with section 17000 is legally significant; the county’s intention is in my view entirely beside the point.

I.

Cognizant that the delegation of authority to administer general relief to the financially pressed counties creates the danger they will try to evade the mandate imposed on them by the Legislature, California courts “have narrowed the discretionary authority of the counties and set a floor to the meaning of general relief.” (Bensinger, From Public Charity to Public Justice: The Role of the Court in California’s General Relief Program (1988) 21 Loyola L. A. L.Rev. 497, 534; see also, General Assistance in California (1984) 12 San Fernando Val. L.Rev. 31, 35).) For example, relying upon the landmark opinion of the California Supreme Court in Mooney v. Pickett (1971) 4 Cal.3d 669 [94 Cal.Rptr. 279, 483 P.2d 1231], our own court recently emphasized that “there are clear-cut limits to this latitude in administering relief. The counties’ discretion ‘ “ ‘can be exercised only within fixed boundaries. In administering General Assistance relief the county acts as an agent of the state. [Citation.] . . . [T]he agency’s regulations must be consistent, not in conflict with the statute, and reasonably necessary to effectuate its purpose. (Gov. Code, § 11374.)””” (Whitfield v. Board of Supervisors (1991) 227 Cal.App.3d 451, 456-457 [277 Cal.Rptr. 815], citing Robbins v. Superior Court (1985) 38 Cal.3d 199, 211 [211 Cal.Rptr. 398, 695 P.2d 695], quoting Mooney v. Pickett, supra, 4 Cal.3d at p. 679.)

Boehm v. County of Merced (1985) 163 Cal.App.3d 447 [209 Cal.Rptr. 530] (Boehm I), one of the most important judicial decisions enunciating the *1105counties’ minimum legal duty under section 17000, holds that in adopting standards of aid and care under section 17001 a county must make a determination of the minimum subsistence needs of its indigent residents, and that a reduction in aid unsupported by a showing that subsistence needs will still be met must be deemed “arbitrary and capricious.” (Id., at p. 453.) The need for a factual predicate ought to be most apparent where, as here, the county proposes to reduce homeless shelter, since it is commonly believed that the need for such assistance is now increasing rather than diminishing.2

Because the county terminated the homeless programs here in issue without the factual study required by Boehm, the trial court enjoined reduction or termination of those programs until the completion of so-called Boehm studies showing that such action would not deprive indigent persons of minimum subsistence needs.

The county claims Boehm studies are not necessary because when it provided the shelter programs in issue it did not intend to discharge duties imposed by section 17000. In this connection, the county primarily relies on an order adopted by the board of supervisors five weeks after the commencement of this class action, declaring that the homeless shelter programs “have not been adopted by this Board as General Assistance programs under Welfare and Institutions Code sections 17000, et seq.” The county in effect claims that, because acts taken in ignorance of a statutory duty cannot be considered evidence of an intention to discharge it, the statute is inapplicable. In support of this curious contention counsel for the county repeatedly told the trial judge that at the time the shelter programs were established, the board of supervisors did not “necessarily” intend to serve the needs of indigent persons under the statute because the board did not understand what it was doing.3 Since it assertedly did not initially *1106realize, and will not now acknowledge, that the shelter programs were necessary to satisfy subsistence needs, the county maintains they are “discretionary welfare programs” that can be terminated at will without the benefit of a Boehm study.

My colleagues agree with the county, believing that the ultimate issue in this case is whether the board intended the programs involved here to discharge its section 17000 obligations. (Maj. opn., ante, p. 1089.) I believe the county’s argument is absurd.

The application of a statute imposing a mandatory duty cannot be made to depend upon whether the party upon whom the duty devolves intended its application; particularly in a case such as this, in which the putative intention is first disclosed in a self-serving after-the-fact resolution adopted in response to a lawsuit seeking to enforce the statute in issue. The question whether the county intended to be bound by section 17000 is no more than a red herring designed to obscure the real issue in this case: whether the shelter programs are necessary to meet the minimum subsistence needs of indigent persons in Contra Costa County, a question that can only be answered on the basis of adequate Boehm studies.

The trial court’s finding that the shelter programs discharged duties under section 17000 was based on a prodigious amount of evidence, in the form of expert testimony and studies of the housing needs of indigent persons in Contra Costa County, that the shelter programs were essential to enable indigent county residents to maintain minimum subsistence levels. Numerous experts stated that other forms of housing assistance provided by the county were “woefully and tragically insufficient to meet the needs of the homeless in the county.” The experts explained at considerable length *1107how, as stated by University of California Professor Allan Heskin, “by failing to conduct a market survey to determine the availability of housing for those without housing or who lack family or friends from whom to rent, the County has arrived at an artificially low figure [for General Assistance payments] which does not reflect the minimal cost of obtaining shelter in Contra Costa County.” The court also relied on the words of the board resolution establishing the shelter programs (No. 88/576), which expressly referred to section 17000, as did every other board resolution arguably relevant to this case.

The majority’s conclusion that the record provides insufficient support for a finding that the shelter programs constitute (or were intended to constitute) section 17000 aid (maj. opn., ante, at p. 1099) ignores not only the record but the rules governing appellate review of the sufficiency of evidence to support a judgment: “[I]n examining the sufficiency of the evidence to support a questioned finding, an appellate court must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion. Every substantial conflict in the testimony is, under the rule which has always prevailed in this court, to be resolved in favor of the finding.” (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142 [134 P. 1157].) Instead of indulging all intendments and reasonable inferences supporting the findings below, which are abundant and compelling, the majority has scoured the record—in vain, in my view—for a scintilla of evidence inconsistent with the findings.

Brushing aside compelling direct and indirect evidence that the homeless shelters in question provided the relief for indigent persons required by section 17000, and indeed were intended to satisfy that requirement, the majority assigns extraordinary weight to “[u]ndisputed evidence” that “some nonresidents and even nonindigents” used the armories for shelter. (Maj. opn., ante, at p. 1100, italics in original.) The evidence the majority seizes upon is a two-page declaration of a “program analyst” for the county social services department who states that “[s]ome of the homeless persons who were provided shelter . . . were not indigent persons [and] some were not Contra Costa County residents.” This “evidence” is incompetent.

First of all, since the declarant admits that “[h]omeless persons who were furnished shelter in the Armories and/or housing through the hotline were not screened for eligibility,” it does not appear how she could know whether users were indigent or residents of the county. Furthermore, the declaration does not indicate whether “some” persons is three or thirty persons or any *1108other number; nor does it suggest such individuals collectively constituted a significant percentage of the total number who used the shelters.

The county’s claim that the shelters were used by nonresidents is not only factually unsupported but theoretically untenable. It would be a nonsensical and unfair Catch-22 to restrict homeless benefits to those who can prove they have a local residence—and therefore do not need relief. (Coates, Legal Rights of Homeless Americans (1990) 24 U.S.F. L.Rev. 297, 315.) In any case, the county’s admission that it did not screen those who used the shelter, as it could have, bars it from belatedly raising this issue (see Adkins v. Leach (1971) 17 Cal.App.3d 771, 778 [95 Cal.Rptr. 61]), as does the county’s failure to claim that imposition of a residency requirement on persons who utilize county homeless shelters would further any governmental interest necessary to effectuate the purposes of the general relief statutes. (See Nelson v. Board of Supervisors (1987) 190 Cal.App.3d 25, 31 [235 Cal.Rptr. 305].)

In short, the unsubstantiated claim that “some” unidentified number of persons using the homeless shelters were nonindigent or nonresidents provides a grossly inadequate basis for rejecting the considered and eminently sensible determination of the trial court that the shelters benefitted indigent persons legally entitled to such relief under section 17000. The court’s determination is based on numerous declarations of persons who state that they are destitute and homeless residents of Contra Costa County who depend upon emergency assistance for shelter and to meet their basic needs as well as upon expert opinions and studies indicating that termination of the benefits in question would deprive numerous poor county residents of minimum subsistence. This evidence is more than enough to support the trial court’s findings that the shelter programs cannot be terminated without Boehm studies showing that subsistence needs will nevertheless be satisfied.

Rejecting the trial court’s conclusion that emergency assistance was a component of county GA, the majority takes the court to task for failing to defer to the county’s administrative interpretation of its own regulations. Claiming that “the county had always treated emergency assistance as discretionary and supplemental to GA” (maj. opn., ante, at p. 1096) my colleagues declare that “[a] court must accord great weight to an interpretation placed on a board enactment by the administrative agency charged with its enforcement and interpretation, especially where that interpretation is of long standing and has remained uniform. [Citations.]” (Maj. opn., ante, at p. 1097.) This reasoning is based on a false premise. The question in this case is not whether the county has complied with a board enactment but whether it is in violation of a state statute. No principle of law permits, *1109let alone obliges, a court to defer to the judgment of a local administrative agency as to whether its regulations or practices comply with the statute it is alleged to have violated. (See Poverty Resistance Center v. Hart (1989) 213 Cal.App.3d 295, 302-304 [261 Cal.Rptr. 545].) The novel principle relied upon by the majority invites counties to define their general assistance responsibilities as they see fit and in this manner avoid a legislative mandate they may find unpalatable. This cannot be.

The disingenuousness of the county’s argument that section 17000 is inapplicable because it did not intend to confer benefits under that statute is revealed by the county’s belated reliance on Government Code section 26227. This statute simply authorizes (but does not require) a county board of supervisors to make certain types of appropriations and other arrangements in connection with a vast array of social service programs. Thus, for example, a board “may contract with other public agencies or private agencies or individuals to operate such programs” and “may make available to a public agency, nonprofit corporation, or nonprofit association any real property of the county ... to carry out such programs . . . without complying with any other provisions of [the Government Code] relating to . . . leasing or granting the use of county property.”4

The county’s extraordinary claim that it provided welfare benefits “pursuant” to this statute, thereby relieving itself of obligations under section 17000, was, first of all, contradicted by county counsel’s admission to the trial court that the board “[did] not have a clear understanding of what they were doing” at the time the shelter programs were established. (See fn. 3, ante.)

More importantly, the very idea that a county can avoid the mandatory duty imposed by section 17000 simply by choosing instead to provide wel*1110fare benefits “pursuant” to Government Code section 26227, thereby rendering the “duty” discretionary, is absurd. Given the choice between a mandatory duty and a discretionary power what county would accept the duty? Section 17000, which provides the safety net for our poorest and most vulnerable citizens, would become a dead letter, as would scores of appellate opinions requiring counties to meet the minimum subsistence needs of its indigents without regard to fiscal or other political considerations.

The assumption that the shelter programs were not “a section 17000 response,” and that therefore the question of minimum subsistence is not at issue, leads the majority to the conclusion that the present lawsuit is not “a challenge to the adequacy of the ‘minimum subsistence’ level of the [county’s] section 17000 response.” (Maj. opn., ante, at p. 1103, fn. 11.) According to the majority, if respondents believe their needs are not being met, they should file another lawsuit challenging the adequacy of county assistance that was intended to respond to subsistence needs pursuant to section 17000. {Ibid.) This captious reasoning, which would relieve the county of the need to justify a reduction in welfare assistance before it could affect the rights of indigent persons, subjects destitute people to additional burdens and risks, repudiates the rule established in Boehm I, supra, 163 Cal.App.3d 447, 452-453 and ignores the intention of the Legislature that “provisions of law relating to a public assistance program shall be fairly and. equitably construed to effect the stated objects and purposes of the program.” (§ 11000.)

II.

One of the most disturbing aspects of the majority opinion is the policy rationale used to permit the county to reduce benefits without first demonstrating that minimum subsistence needs would still be met. The majority emphasizes that “limited county resources,” and the “variable scope of the homeless problem” make “innovation and flexibility vital.” It is claimed that if “evolving solutions” to the problem of homelessness are “cast in concrete as enforceable entitlements” counties will not respond, “to the detriment of those who enjoyed and now seek to lock in those programs under section 17000.” (Maj. opn., ante, p. 1099.) According to my colleagues, “[f]iscal planning demands that control of [these welfare] programs be in the hands of the local governing body, not left to the uncertain fate of judicial construction. Courts must respect, whenever possible, the governing body’s subjective intent and, before declaring a program a section 17000 entitlement, have affirmative evidence of such an intent. Any other rule would lay a trap and inhibit creative, experimental solutions.” (Maj. opn., ante, p. 1102.)

*1111The foregoing statements, which are at the heart of the majority opinion, effectively repudiate Mooney v. Pickett, supra, 4 Cal.3d 669 and its progeny and misconceive the role of courts called upon to enforce section 17000.

The court declared in Mooney v. Pickett, supra, 4 Cal.3d 669: “We are aware of the financial difficulties which attend present welfare programs on local, state, and national levels. This court, however, is not fitted to write a new welfare law for the State of California, and while the Legislature addresses itself to that task it remains our task to enforce the existing law.” (Id., at p. 680.) Five years later our own division made it crystal clear that, because it deals with minimum subsistence, a county’s duty under section 17000 cannot be compromised by any administrative or even fiscal reason. Writing for a unanimous court, Justice Kane declared that “[i]t is clear that section 17000 imposes upon the City and County of San Francisco a mandatory duty to relieve and support its indigents, and the excuse that it cannot afford to do so is unavailing. [Citations.]” (City and County of San Francisco v. Superior Court (1976) 57 Cal.App.3d 44, 47 [128 Cal.Rptr. 712], italics added; accord, Robbins v. Superior Court, supra, 38 Cal.3d 199, 217; Nelson v. Board of Supervisors, supra, 190 Cal.App.3d 25, 32; Clay v. Tryk (1986) 177 Cal.App.3d 119, 125 [222 Cal.Rptr. 729]; Boehm v. Superior Court (1986) 178 Cal.App.3d 494, 503 [223 Cal.Rptr. 716] (Boehm II); Boehm I, supra, 163 Cal.App.3d 447, 451; Rogers v. Detrich (1976) 58 Cal.App.3d 90, 103 [128 Cal.Rptr. 261].) Our court was influenced by the fact that in a series of cases the California Supreme Court “considered the plight of the taxpayers, but in each case concluded that their burdens were not so grievous as to permit indigents, in the midst of plenty, to go hungry, cold and naked without fault.” (City and County of San Francisco v. Superior Court, supra, 57 Cal.App.3d at p. 47.)

Relying on our opinion in City and County of San Francisco, the court in Boehm II stated that while “[t]his court is not unmindful of the fiscal restraints imposed by Proposition 13 and the consequent need for strict control of all county expenditures . . . , budgetary constraints cannot justify excluding from minimum subsistence grants to the indigent allowance for each of the basic necessities of life . . . .” (178 Cal.App.3d at p. 503; accord, Bernhardt v. Board of Supervisors (1976) 58 Cal.App.3d 806, 811 [130 Cal.Rptr. 189].) The courts that have strictly enforced section 17000 have not been blind to the economic hardships being experienced by many counties. One such court pointedly acknowledged that “police, fire, and other services are curtailed; libraries close. Counties must find a way to provide many essential services while having only limited means of raising revenues with which to pay for them. For whatever reason, the Legislature has seen fit to place a large portion of the burden of caring for the indigent upon those units of government—the counties—least able to generate necessary *1112revenues.” (Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 413 [261 Cal.Rptr. 706], fn. omitted.) The court also recognized, however, that “these practical concerns cannot permit [the courts] to disregard the statutory command [of § 17000]. . . .” {Ibid., italics added; see also, Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286 [268 Cal.Rptr. 219].) Thus, the cost factors that at least contributed to Contra Costa County’s termination of shelter programs5 cannot justify that action.

If a county cannot avoid the mandatory duty imposed by section 17000 even if it lacks the funds, all the less can it be permitted to do so in the interest merely of administrative or fiscal “flexibility,” as the majority would have it.

The majority’s statement that “[f]iscal planning demands that control of aid programs be in the hands of the local governing body, not left to the uncertain fate of judicial construction” (maj. opn., ante, at p. 1102, italics added) also cannot be squared with the case law. It is established that, while the act of adopting welfare standards “has budgetary consequences, that fact does not make the enactment a part of the budget process. [Citations.]” (Poverty Resistance Center v. Hart, supra, 213 Cal.App.3d 295, 303.) Because the county’s duty to relieve and support the poor is mandated by state law, “the county is subject to the judicial remedy of contempt to compel compliance with its statutory obligations despite a claim that ‘no county funds are available.'{Ibid., italics added.) Judicial intervention, far from being a cause for uncertainty, is recognized as the only way to insure that minimum subsistence needs are met. As the county virtually conceded at oral argument before us, its contention that the orders below “exceed the lawful authority of the courts” cannot be squared with the recent opinion in Poverty Resistance Center v. Hart, supra, which emphatically rejected the view that the factual predicate for supervisorial adoption of discretionary standards of aid and care is immune from judicial review because it consists of the ordinary exercise of the legislative authority to appropriate money. (213 Cal.App.3d at p. 303.) The majority contends that prohibiting termination of an existing county welfare program due to the absence of a Boehm study—which involves a finding that the program serves needs required to be met under section 17000—amounts to the impermissible judicial “creation” of a welfare program and the usurpation of a county legislative function. (Maj. opn., ante, at p. 1102, italics in original.) This conclusion is predicated on an unprecedentedly crabbed view of the role of California courts, which my colleagues believe must defer to the factually unsubstanti*1113ated determination of the counties as to whether the benefits they afford indigent persons are required to be provided by section 17000. It is by constricting the role of the judiciary in this manner that the majority effectively converts a mandatory duty into a discretionary power and thereby eviscerates section 17000.

The case law interpreting and applying section 17000, like the mandatory wording of the statute itself, reflects an awareness that general relief programs are “susceptible to political pressures .... [and] general relief recipients have no political influence. General relief recipients are the poorest of the poor; they are the homeless and helpless. They are the least likely of any in society to assert their rights because they are the least likely to know them. ... [H] But the right to general relief... is their only source of aid. Without it, they would have no access to shelter and no source of food. They would be completely destitute. By placing the right to general relief in the hands of the board of supervisors, there is the risk that a minority, those who have the least both financially and politically, will be homeless and hungry due to the political pressures for limited county funds.” (Bensinger, From Public Charity to Social Justice: The Role of the Court in California's General Relief Program, supra, 21 Loyola L.A. L.Rev. 497, 506-507, fns. omitted; see Clark v. Community for Creative Non-Violence (1983) 468 U.S. 288, 304, fn. 4 [82 L.Ed.2d 221, 233, 104 S.Ct. 3065], dis. opn. of Marshall, J. [“The homeless are politically powerless”]; Coates, Legal Rights of Homeless Americans, supra, 24 U.S.F. L.Rev. at p. 301 [Because “homeless people . . . have no market power and no voting power . . . . [1|] Local elected officials tend to short change aid to the Homeless, so that resources can go to more politically productive areas”]; Hombs, Social Recognition of the Homeless: Policies of Indifference (1987) 31 Wash. U.J. Urb. & Contemp. L. 143; Note, Building a House of Legal Rights: A Plea for the Homeless (1985) 59 St. John’s L. Rev 530, 531-532; Note, Establishing a Right to Shelter for the Homeless (1984) 50 Brooklyn L. Rev. 939, 940, fn. 8.)

The requirement that a reduction in county welfare benefits be accompanied by a Boehm study is predicated on the reasonable judicial assumption that such benefits would not originally have been provided if responsible county officials had not determined they were needed to maintain minimum subsistence. A factual showing that such need no longer exists or has diminished or has been met in some other fashion demonstrates that the county is not sacrificing the subsistence needs of indigent persons in order to satisfy other demands and provides the courts, which are ultimately responsible for enforcing section 17000, a rational basis upon which to determine whether a county has violated the mandatory duty imposed by that statute.

*1114In short, welfare benefits a county has already put in place to meet the needs of its poorest citizens are “cast in concrete,” to use the majority’s term, and cannot be reduced, if the county refuses or is unable to show that the proposed reduction would not deprive the county’s indigent residents of minimum subsistence needs. (Boehm I, supra, 163 Cal.App.3d at p. 452.) Because such a Boehm study is essential “to satisfy the statutory mandate that the county relieve and support its indigents” {ibid.), any reduction that is not justified in this manner must be deemed arbitrary and capricious.

Contra Costa County, which appears to have acted on the basis of fiscal considerations (see fn. 5, ante), never even attempted to demonstrate that termination of the shelter programs would not impair rights of indigent persons under section 17000. Accordingly, I would affirm the judgment.

A petition for a rehearing was denied May 31, 1991.

All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

For example, a recent and widely reported study of homelessness in 30 American cities reported that “During the past year requests for emergency shelter increased in the survey cities overall by an average of 24 percent, with four out of five of the cities registering an increase, 10 percent reporting that the number of requests remained the same, and another 10 percent reporting a decline in requests.” (U.S. Conf. of Mayors, A Status Report on Hunger and Homelessness in America’s Cities: 1990 (Dec. 1990) at p. 2.) The report also states that “Every survey city except one expects overall requests for emergency shelter, and requests by homeless families in particular, to increase during the next year.” (Id., at p. 3.) This report is consistent with earlier studies demonstrating the growth of homelessness in this state and nation. (See, e.g., U.S. Conf. of Mayors, The Growth of Hunger, Homelessness and Poverty in America’s Cities (1986); Homelessness in America: Hearing Before the House Subcom. on Housing and Community Development, 97th Cong., 2d Sess. (1982) published by G.P.O. 1983.)

After the assistant county counsel told the court that at that time “[t]he Board and the people advising the Board on this subject did not have a clear understanding of what they were doing,” the following exchange occurred between the court and the county’s attorney:

*1106“The Court: Well, I think you’re suggesting that the board may not have been as acutely aware as it may now be . . . , as to the legal consequences of its actions, but is that to say that the Board did not intend when it set up this program to relieve and support incompetent and poor and indigent people?
“Mr. Walenta: The Board did not necessarily intend that.
“The Court: What did the Board intend to do other than relieve and support incompetent, poor and indigent persons?
“Mr. Walenta: The Board intended to take people out of the streets and put them into the armories without regard to their status, their eligibility or their circumstances.
“The Court: But wasn’t it for the purpose of relieving and supporting poor indigent people?
“Mr. Walenta: Not necessarily. That’s my whole point. Part of the purpose was simply to get people off the streets.
“The Court: So if someone would have asked the Board at the time this program was set up, Mr. or Ms. Board, you don’t intend to relieve and support indigent people, do you? They would have said No.
“Mr. Walenta: I don’t know what they would have said. . . . They do not have a clear understanding of what they are doing.”

At the time of the proceedings below, Government Code section 26227 provided in its entirety as follows:

“The board of supervisors of any county may appropriate and expend money from the general fund of the county to establish county programs or to fund other programs deemed by the board of supervisors to be necessary to meet the social needs of the population of the county, including but not limited to, the areas of health, law enforcement, public safety, rehabilitation, welfare, education and legal services, and the needs of physically, mentally and financially handicapped persons and aged persons.
“The board of supervisors may contract with other public agencies or private agencies or individuals to operate such programs which the board of supervisors determines will serve public purposes. In the furtherance of any such program, the board of supervisors may make available to a public agency, nonprofit corporation, or nonprofit association any real property of the county which is not, and during the period of possession, will not be needed for county purposes, to be used to carry out such programs, upon terms and conditions determined by the board of supervisors to be in the best interests of the county and the general public, without complying with any other provision of this code relating to leasing or granting the use of county property.”

When asked at deposition whether cost was a factor in the county’s decision to eliminate emergency assistance, the director of the county department of social services allowed that “cost is always a consideration.”