Glasner v. Department of Public Health

WOOD, P. J. Petitioner is an orthodox rabbi who had been employed by the defendant Department of Public Health in the position of kosher food law representative. Pursuant to the department’s proposal that the position be eliminated, the [728]Governor, in his proposed budget submitted to the Legislature for the fiscal year 1965-1966, recommended that said position, and funds for the salary for said position, be eliminated. The Legislature approved the budget, and the department “laid-off” petitioner (Gov. Code, § 19530.) Petitioner’s appeal to the defendant State Personnel Board was dismissed, and he filed a petition, in the superior court, for a writ of mandate compelling the department and the board to reinstate him in the position. The court, granted the petition. Defendants (department and board) appeal from the judgement.

Appellants contend that the department properly laid-off petitioner, and that the court erred in issuing a writ of mandate compelling the department and the board to reinstate petitioner.

In 1931, the Legislature enacted section 383b of the Penal Code which provides in part as follows: "Every person who with intent to defraud, sells or exposes for sale any meat . . . and falsely represents the same to be kosher ... is guilty of a misdemeanor. ...”

In 1957, the Legislature enacted section 213 of the Health and Safety Code which provided in part as follows: “The State Department of Public Health shall enforce the provisions of Section 383b of the Penal Code. . . . There is hereby appropriated to the Department . . . the sum of twenty thousand dollars ($20,000) . . . .” (Stats. 1957, ch. 2409, p. 4155.) Apparently the provisions of section 383b of the Penal Code had been enforced, from its enactment in 1931 until 1957, by governmental agencies other than the Department of Public Health.

In 1959, the Legislature amended the renumbered section 213 of the Health and Safety Code. The number was changed from .213 to’ 214.; the "provision that the department shall enforce the provisions of section 383b was re-enacted without change; and the appropriation ($20,000) was eliminated. (Stats. 1959, ch '623, p. 2605.)

Pursuant to the 1957 legislation, the board, at the request of the department, .created the. position of kosher food law representative, requiring the qualification, among others, that such representative be an ordained orthodox rabbi. The duties of the position, as described in the board’s specifications, are in substance to inspect markets, delicatessens, and restaurants, which offer kosher prqducts for sale, to assure that such products have been processed and handled in a manner consistent with orthodox' Hebrew'religious ritual and custom;