FROEHLICH, J., Concurring. The per curiam opinion issued in this case is indisputably correct, in my opinion. It fails, however, to address the issue the parties apparently conceived to be central to the case. This issue is whether the county under any circumstance can short its obligations to the general welfare program when it is in financial extremes. It is proper and in keeping with judicial restraint that we avoid unnecessary rulings, that we limit our appellate conclusions to those necessary to resolve the case, and that we not attempt resolution of issues which are potential but not currently actual. (See Witkin, Manual on Appellate Court Opinions (1977) § 86, pp. 155-157.)
However, our brief opinion, although written with care to avoid an inferential ruling on the issue so strenuously argued, may nevertheless be taken by some as a complete rejection by this court of the entirety of the county’s position. This is not the case so far as I am concerned, and I write this concurring opinion to more fully explain my position.
[987]An effort to focus more precisely on the county’s position requires that I lay as a foundation the factual and legal setting of the case. Were we to conclude as a matter of law that no circumstance of financial extremity could justify the reduction of general welfare payments, then the facts found by the trial court would be irrelevant. In my opinion this conclusion of law cannot be reached, and I therefore must pay attention to the facts.
The reviewing court is bound by the facts found by the trial court, assuming the findings are supported by substantial evidence. Applying that principle to this case is not difficult, because the facts brought before the trial court were largely undisputed.1 While plaintiffs disagree with the court’s legal conclusions, they do not take issue with the assertion that there is evidence to support all of the court’s factual determinations. My review of the record confirms the conclusion that the court’s findings reflect and are supported by the evidence brought before it. I therefore accept the findings, which are summarized as follows (quoted portions being from the trial court’s statement of decision):
1. The court recited detailed statistics which describe the number, gender, racial makeup and other characteristics of employable single people receiving general relief. One-third of the total category of recipients receive benefits for periods longer than three months, and hence would be affected by the new ordinance. A significant number of the recipients will find work within three months, but probably more than half will not. Of those who find work only 10 to 20 percent will retain their jobs for nine months or more. Recipients who lose benefits because of the new ordinance will not all be able to find support from other community resources, and some will have to depend upon family, friends, or will become homeless.
2. Our present system of welfare benefits has created a “cycle of . . . dependency” which is detrimental both to the individual recipients and to the public. The new ordinance will have the effect of motivating recipients to find work and will reduce dependency upon welfare.
3. The 1991-1992 budget reflected a deficit of from $30 million to $45 million. In response to this crisis the county implemented budgetary cuts which included hiring freezes, voluntary time-off (VTO) programs for employees, cuts in travel budgets, freezes in one-time expenditures, and program cuts. The 1992-1993 budget is $19 million less than the expenditure for [988]the previous fiscal year. The balancing of this budget required cuts in all programs except those of the sheriff and the courts. Some 70 percent of county program costs are covered by program revenues (state and federal sources, grants, and specific fees and charges). The balance of approximately 30 percent comes from “general purpose revenues,” made up of property taxes, sales taxes, vehicle license fees, court fines and other miscellaneous sources. If one assumes that the county has no discretion with respect to the use of funds for so-called “mandatory” programs, only approximately 1.6 percent of total revenues remain available for so-called “discretionary” programs.
4. Restrictions on county sources of revenue, imposed by Proposition 13 and Assembly Bill No. 8, have precluded the county from raising sufficient funds to support its necessary programs. The gap between available funds and demand thereon has forced the county to make painful fiscal decisions. Priorities have been set “in all areas of public funding from health services to police protection to social services to criminal justice. . . .” Numerous money-saving devices have been implemented, such as the hiring freezes and VTO programs mentioned above. New user fees of various kinds have been inaugurated. A lawsuit has been instituted to challenge the allegedly inequitable allocation of Assembly Bill No. 8 allocations from the state.
5. Implementation of the subject ordinance would save the county $3.5 million to $3.9 million in 1992-1993. While this is not a major percentage of total county expenditures (actually, less than 1 percent thereof) it is a significant amount when considered in light of the discretionary funding available to the county. Failure to implement the ordinance will require reduced expenditures of other programs. The programs which would suffer are of critical importance to the overall health, safety and welfare of the county. It is not realistic or reasonable to argue that replacement revenues can be generated from other sources.
Based upon these factual findings, the court concluded that the county had met its burden of establishing fiscal impossibility, defining fiscal impossibility as a concept “premised on reasonableness: money must be available from other sources without violating the law or causing substantial harm to programs of equal importance and significance to the overall health, welfare, and safety of this county and its residents.” It was upon this ultimate conclusion of law that the trial court found the ordinance valid.
These factual findings indicate that the county has no alternative but to reduce funding for most if not all of its programs. Is there then something about the general welfare program which makes it sacrosanct? Discussions [989]of this subject tend to characterize programs administered by the county as “mandatory” or “discretionary” without much analysis as to the source of the characterization or its practical results. Fortunately, at the trial below uncontradicted evidence was received which explained the differences in the various county administered programs and the practical effects of their funding sources.2
The programs can be divided generally into four groups: The first is “Mandated Program with Mandated Service Level.” This is a program the maintenance of which is required either by federal or state law, and the service level of which is also prescribed by federal or state law. An example would be the provision of indigent criminal defense. The second category is “Mandated Program with Discretionary Service Level.” An example would be the administration of the sheriffs office and the jails, which is required by state law but with respect to which no specific level of service is prescribed. The third category is the “Discretionary Program with Mandated Service Level.” This is a program the county is not required to provide but if it elects to participate (and accepts state or federal funds for the program) must fund at a prescribed level. An example would be alcohol and drug programs. The final category is “Discretionary Program with Discretionary Service Level.” As the name implies, such program is one which the county is not required to but elects to sponsor, and the level at which it is funded is discretionary. An example would be the maintenance of honor camps. Of course, as the witnesses explained, these categories are not always clearly defined, and a reduction in a supposedly “discretionary” program may cause an impact upon a supposedly “mandated” program. For instance, if the county elects to terminate its honor camp programs (discretionary/discretionary) the result will be crowding of the jails with financial impact upon the sheriff’s programs (mandatory/discretionary).
My review of the manifold programs administered by the county (as reflected in voluminous documentation presented to the trial court in this case) casts doubt upon the facile labeling of a program as either “mandatory” or “discretionary” (or “local” as distinguished from “state”). It may well be that completely “discretionary” programs should be given a lower budgetary priority simply because neither state nor federal law requires their administration.3 This dichotomy leaves unprioritized, however, the many programs which are either “mandatory/mandatory” or “mandatory/discretionary.” I [990]accept the proposition that the general relief program is a state-mandated program at state-mandated service levels. Does this mean, therefore, that it is a program of higher priority than the many programs mandated by the state but at service levels which are, at least definítionally, discretionary? A brief and by no means exhaustive listing of these programs would include: public health responsibilities imposed on counties by Health and Safety Code section 450 et seq.; basic due process protection which the county must provide criminal accuseds by California Constitution, article I, section 15; the requirement of Welfare and Institutions Code section 202, subdivision (b) that the county provide minors in its custody with “care, treatment and guidance consistent with their best interest[s]”; the obligation imposed by Streets and Highways Code section 941 that the county create and maintain highways “necessary to public convenience.”
Plaintiffs argue that the general relief program is somehow more important, and should be given higher priority in the allocation of funds, than other programs imposed upon the county by state law, focusing upon the distinction that at least some of these other programs do not have state-mandated funding levels. I find this argument difficult to accept, and offer as an example the matter of public safety. California Constitution, article I, section 1, establishes the right to “pursu[e] and obtainf] safety.” To enforce this right the Legislature has commanded since 1883 that the law enforcement officials of each county shall “arrest” all persons who commit a public offense, and shall prevent “affrays, breaches of the peace, riots and insurrections which may come to [their] knowledge.” (Stats. 1883, ch. LXXV, § 93, p. 320, now codified as Gov. Code, §§ 26601 and 26602.) Implementing these constitutional and statutory imperatives are Government Code sections 26600, 26601, and 26605, which require that each county have a sheriff and that the sheriff shall “preserve the peace,” “arrest... all persons who attempt to commit or who have committed a public offense” and “take charge of and keep the county jail and the prisoners in it.” Since the mandate to support a sheriffs office and to keep the peace contains no specified level of service or funding, this is a “mandatory/discretionary” program.
Welfare and Institutions Code section 17000 requires that “[e]very county . . . shall relieve and support all incompetent, poor, indigent persons . . . .” Section 17001 of that code requires counties to adopt standards of aid and care which will carry out the broad requirement of section 17000, and case law has established that the level of funding must be sufficient to cover basic [991]requirements of food, shelter, clothing, transportation and medical care. (Boehm v. Superior Court (1986) 178 Cal.App.3d 494, 501 [223 Cal.Rptr. 716].) The general relief requirement is, therefore, a “mandatory/mandatory” program. Have we, by giving the program this label, elevated it in priority to a position of superiority, deserving priority in funding, as compared to other state-mandated programs, such as the sheriffs department? I can find no authority in support of this proposition.
There is, of course, considerable authority to the effect that a county, as agent of the state, has no discretion other than to carry out state programs. The cases enunciating this black-letter statement in general do not, however, consider the possibility that a county cannot fund the program under consideration by the court without shorting another equally important, or indeed more important, public program. In City and County of San Francisco v. Superior Court (1976) 57 Cal.App.3d 44 [128 Cal.Rptr. 712], for instance, after finding that San Francisco’s indigent funding level was “arbitrarily low,” a superior court ordered the social services commission to investigate and establish adequate standards. As part of an opinion upholding this order, the appellate court stated that the duty of relief and support for indigents was mandatory, and that “. . . the excuse that [the county] cannot afford to do so is unavailing.” (Id. at p. 47.) This was apparently a gratuitous comment, however, since it seems the county did not interpose a defense of financial inability to increase payments. This phrase was again quoted in Poverty Resistance Center v. Hart (1989) 213 Cal.App.3d 295, 303 [261 Cal.Rptr. 545]. The Hart case, however, dealt with the factors used by the county in establishing its level of relief, and did not consider a county claim of inability to finance the program.
The controlling authority, of course, insofar as it speaks to the issue, is Mooney v. Pickett (1971) 4 Cal.3d 669 [94 Cal.Rptr. 279, 483 P.2d 1231] The Supreme Court there dealt with San Mateo County’s attempt to limit relief payments somewhat similar in nature to that attempted by our San Diego County ordinance, the only difference being that the San Mateo ordinance under consideration precluded all assistance to “employable single men.” (Mooney, supra, at p. 671.) The Mooney court recited the familiar teaching that the county is but an agent of the state in carrying out the provisions for general relief, and that it is precluded from denying relief to individuals the state has identified as qualified. The court in Mooney was also faced with an argument of fiscal impossibility. This argument was refuted by the following oft-quoted passage: “Finally, respondents contend that the county simply cannot afford to extend General Assistance to employable persons; they present an estimate that abolition of the employable single man rule would approximately double the cost of General Assistance. [992]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. We observe that the county retains extensive authority to establish standards for General Assistance, both as to eligibility and as to amount of aid. In view of this discretion, the county can surely find many ways which do not violate state statute in which it can limit General Assistance payments to the financial resources available.” (Mooney, supra, at p. 680.)
Two assumptions are made in this broad statement of county responsibility which can be called in question at the present time. The first is that “. . . the county retains extensive authority to establish standards for General Assistance, both as to eligibility and as to amount of aid.” Since 1971 the judiciary has sharply delineated counties’ discretion. In Bernhardt v. Board of Supervisors (1976) 58 Cal.App.3d 806, 812 [130 Cal.Rptr. 189] it was determined that assistance could not be denied to young adults. Long v. City and County of San Francisco (1978) 78 Cal.App.3d 61, 69 [144 Cal.Rptr. 64] held that the availability of food stamps could not be taken into consideration in setting assistance levels. Robbins v. Superior Court (1985) 38 Cal.3d 199, 210 [211 Cal.Rptr. 398, 695 P.2d 695] determined that counties may not require recipients to accept “in-kind” benefits because such results in a loss of privacy. In Boehm v. Superior Court, supra, 178 Cal.App.3d at pages 501-504, it was held that in setting assistance levels the county may not limit its consideration to only the basics of food and housing, but must include an appropriate allowance for each of the necessities of life, which include clothing, transportation and medical care. On the other hand, it was held in Nelson v. Board of Supervisors (1987) 190 Cal.App.3d 25, 34 [235 Cal.Rptr. 305] that a recipient of relief (including an allowance for housing) could not be denied benefits on the ground of lack of a residence address. In Poverty Resistance Center v. Hart, supra, 213 Cal.App.3d, at pages 304-305, it was held that the level of relief set for county payments must be based upon actual, rather than hypothetical, costs experienced within the county. In short, the broad branch of discretion to determine eligibility and level of benefits, as posited by the Mooney court, has been whittled away by judicial pronouncements to die point of its now appearing a thin wand indeed. Considerable speculation is required to conjure any grounds upon which a county currently can cause a measurable adjustment in its benefit obligations. It must supply subsistence levels of all major costs of living to all indigent adults in the county.
The second Mooney assumption which has proved inaccurate is that the county “can limit General Assistance payments to the financial resources [993]available.” It is difficult to say (as is proved by a reading of the opposing briefs in this case) exactly what this phrase means. If it is to suggest that the county via eligibility standards and the setting of benefit levels can adjust payments to the money the county has available, the above paragraph provides a conclusive negative answer. If, on the other hand, the phrase was intended to indicate that impossibility of performance by the county is not a defense because the county has the capability of raising the money necessary to fund any program, then I conclude the comment is dated and no longer accurate.
The Mooney court did not, of course, have before it the record of fiscal emergency which has been presented in this case. Mooney was decided before Proposition 13, at a time when counties were essentially free to increase revenue from their principal source of funds, the property tax. Further, there was no issue in Mooney of possible fiscal impossibility—it was not an argument made by the county.
In my view Mooney did not address the issue of the county’s discretion in funding state programs when the county is short of funds. Mooney simply assumed that funds could be raised, one way or another. As the findings of fact set forth above demonstrate, the county is not now in a position to expand its revenue-raising capabilities. Further, as those same factual findings illustrate, the county is pulled and strained in many conflicting directions by competing programs, each having a valid claim on the county’s first priority of spending. The trial court did not attempt to identify which programs might be more important than, or at least as important as, the general relief program, stating only that continued full funding of the general relief program would harm “programs of equal importance and significance to the overall health, welfare, and safety of this County and its residents.” I would surmise, however, that most reasonable people would agree that the care of county juvenile wards, the provision of indigent health services, the keeping of the peace, and no doubt numerous other county functions, are at least as important as the maintenance of indigent employable single people.
Before progressing in this analysis, one should ask the question: Is the principle of impossibility applicable to a county obligation imposed by state law? The answer is yes, and it is provided in a recent and well-reasoned opinion in Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286 [268 Cal.Rptr. 219]. The court there dealt with a county ordinance which precluded use of county funds for the welfare program. First concluding that the county had no standing to contest or countermand state laws, the court then directed its attention to the defense of impossibility: The county claimed that “. . . its financial straits leave it literally unable to comply with the state mandate.” (Id. at p. 299.)
[994]The appellate court in McMahon found, as a matter of fact from the evidence presented to the trial court, that impossibility of performance had not been demonstrated. The emergency claimed by the county was five years away, giving ample time for the county to address the problem. Further, the court found that no adequate attempt had been made by the county to raise additional revenue. Accordingly, the court denied the county’s claims of impossibility by finding factually that they were not supported.
Preliminary to this finding, however, the court analyzed the issue of impossibility and held that it was a legal principle applicable to county obligations. Citing Civil Code section 3531, the court agreed that “The law never requires impossibilities.” It continued by setting forth basic principles which are applicable to our case: “Impossibility means not only strict impossibility but also impracticability because of extreme and unreasonable difficulty, expense, injury or loss involved. (Oosten v. Hay Haulers etc. Union (1955) 45 Cal.2d 784, 788 [291 P.2d 17].) Consistent with this maxim, the law recognizes exceptions to statutory requirements for impossibility of performance. (People v. Lake County (1867) 33 Cal. 487, 492 [impossibility of performance makes mandatory statutory duty directory]; County of San Diego v. Milotz (1953) 119 Cal.App.2d Supp. 871, 883-884 [260 P.2d 282]; see 73 Am.Jur.2d, Statute, § 15, p. 278 [‘[W]here strict compliance with the terms of a statute is impossible, compliance as near as can be has been permitted on the principle that the law does not require impossibilities.’].)” (Board of Supervisors v. McMahon, supra, 219 Cal.App.3d at pp. 299, 300.)
The McMahon court continued by making an observation which is pertinent to our case. It rejected the county’s position because “. . . the County assert[ed] impossibility to excuse entirely its desired nonperformance.” (219 Cal.App.3d at p. 300.) The argument which apparently would have carried more weight with the court would have been one which sought injunctive relief permitting the county “to comply substantially with the statutory mandates.” (Ibid.) The reason I find this observation instructive is that the facts found by the trial court judge in this case do not support the conclusion that it is “impossible” for the county to fund the general relief program. The showing made, and as found by the trial judge, was that it is impossible to fund the program at its current prescribed level of benefits without damage to equally important programs. The conclusion that funding is required only to the extent reasonably possible, in light of other mandatory programs, would thus seem supported by Board of Supervisors v. McMahon (which appears to be the only case directly addressing the issue of “impossibility”).
My attempt at summation of these conclusions would be as follows: When a county has exhausted all realistic means of raising funds; when it experiences severe budgetary shortfalls by reason of uncontrollably expanding [995]demands of vital programs; when it has no recourse but to cut all or even most of its vital programs, reducing the funding across the board; then and in such circumstances the county is not obligated to provide full funding for the general relief program, in the manner and to the extent which would be required were the county not facing fiscal crisis.
Were this, my opinion, to be included as part of the per curiam opinion, or a majority opinion, in this case, it would be subject to criticism as excessive dicta. As the writer of a mere concurring opinion, none of which has the force of precedent, I am free to state what I think should be the resolution of the issue so directly posed by the appeal. Whether this may be of any assistance to any of the parties to this action is no doubt debatable. At the very least, however, I would hope these observations would disabuse what otherwise might be inferred from our principal opinion, that the county in these dire circumstances lacks all discretion to act in protection of what it deems vital and necessary allocation of resources, notwithstanding so-called “mandated” expenditures imposed by state statute.
Respondents’ petition for review by the Supreme Court was denied December 16, 1993.
Plaintiffs recite in their brief that “[t]o a large extent, the evidence introduced at trial by both sides concerning the County’s fiscal condition was undisputed.” Plaintiffs refer to the court’s findings concerning the fiscal deficit, the effort to increase revenues and the savings instituted in several areas, and state “[f]or purposes of this appeal, plaintiffs do not dispute these findings.”
This was given by Roger John Mialocq, who qualified as an expert in the preparation of budget analyses for cities and counties; and Manuel Anthony Lopez, an administrator who had supervised the preparation of a “full cost revenue based study” of the county budget for fiscal year 1990-1991.
Even this assumption weakens, however, when the particular programs are considered. We find from the County of San Diego Full Cost Revenue Based Study that this category includes [990]such seemingly important public services as pest control, the county human relations commission, the office of the county counsel, the county library, various county health programs, the administration of the municipal court, adult and youth honor camps, the department of public works, and many other seemingly essential services.