Keeler v. Superior Court

SHENK, J.

This is a proceeding in mandamus to compel the respondent superior court to hear and determine a petition pending in that court for a writ of mandamus to order the respondent State Personnel Board to take no further action in the matter of the suspension of the petitioner Francis W. Keeler, a state employee in the respondent Department of Fish and Game.

The petitioner was suspended by the Director of the Department of Fish and Game for a period of 10 days without

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pay because of Ms refusal to take part in a creel census, a temporary assignment. He claimed that the counting of fish was outside of his civil service duties in his classification as a hunter and trapper. The' applicable job specifications are as follows: “Under the direction of the Supervising Predatory Animal Hunter and Trapper, to do hunting and trapping, and other work in connection with the control of predatory animals; and to do other work as required.” He appealed to the State Personnel Board from the order of suspension. (Gov. Code, § 19575.) The appeal was decided against him. Thereafter he filed in the respondent superior court a petition for a writ of mandate to compel the board to set aside the suspension and expunge all record of the action taken by the board. In its amended return the board pleaded, among other things, affirmative defenses that the assignment of work was made pursuant to an emergency and therefore justified, and that the defendant had waived his right to seek relief. The merits of the suspension are not now before this court.

It appears that at the time of the proceedings before the board it did not, in accordance with its own rules, make findings of fact in proceedings such as the present one. But while the mandamus proceeding was pending in the superior court, the board modified its rules so as to require findings on all investigations undertaken or hearings conducted by it. (Cal. Admin. Code, tit. 2, § 68, p. 4.1.) Thereafter the board made a motion in the mandamus proceeding for an order referring the matter back to it so that it could take evidence and make findings on the affirmative defenses. The motion was granted.

The present petition challenges the authority of the superior court to make its order of reference where the matter is then before that court on a petition for.a writ of mandate. The petitioner contends that the scope of review of an administrative order by means of mandamus is governed and limited by section 1094.5 of the Code of Civil Procedure; that under that section a reviewing court may consider only the record as constituted at the time of a petitioner’s application for a writ of mandate, and that no provision is made pursuant to which the reviewing court may properly remand the matter for additional proceedings to the administrative body whose order is sought to be reviewed. The respondents contend that the scope of the superior court’s review is not limited by section 1094.5. That section provided in subdivision (a)