California State Employees' Ass'n v. Enomoto

Opinion

PARAS, Acting P. J.

In the underlying superior court action, plaintiffs California State Employees’ Association (CSEA) and Charles

[601]

Swim filed a petition for a writ of mandamus and complaint for declaratory relief. They sought an order requiring defendants Department of Corrections (Department) and its then director, J. J. Enomoto to furnish service revolvers as safety equipment to parole agents employed by the Department. The basis for the petition was that the furnishing of firearms was compelled by the California Occupational Health and Safety Act (OSHA), which requires employers to provide reasonably adequate safety devices for safe and healthful employment. (Lab. Code, §§ 6401, 6403.) At all times relevant, rules of the Department have prohibited parole agents from carrying firearms unless prior permission has been obtained through established procedures by a demonstrated specific threat to personal safety. (Dept, of Corrections Parole Procedures Manual, art. 3, §§ 130-133.)

Defendants demurred on the ground that plaintiffs did not petition the OSHA Board to set a firearm safety standard (Lab. Code, §§ 142.1-142.5) and thus failed to exhaust their administrative remedies prior to seeking judicial relief. The court overruled the demurrer.

At trial, the court issued a writ of mandate commanding defendants “to furnish parole agents with firearms” and permit them to carry firearms on their persons at their individual discretion. It further granted attorney fees to plaintiffs. The court specifically found that Labor Code section 6401 compelled its decision. Although no parole agent of the Department has “ever been killed in any duty-connected circumstance,” it found the dangers of the employment such “. . . that death or violent injury might reasonably be expected to occur at anytime, and the failure of any fatality to occur is notwithstanding, rather than because of, the inability of parole agents to carry firearms.”

Defendants appeal the superior court judgment and contend the court (1) was required to dismiss the action for failure to exhaust administrative remedies, (2) impermissibly and without substantial evidence substituted its own discretion regarding parole agent safety for the administrative policy decisions within the discretion of the Department, and (3) erroneously awarded attorney fees.