# Horn v. County of Ventura

> California Supreme Court · July 9, 1979 · 24 Cal. 3d 605

URL: https://www.frixlaw.com/law-library/cases/9601797

## Case

- **Full name:** MERLIN W. HORN, Plaintiff and Appellant, v. COUNTY OF VENTURA, Defendant and Respondent; FREDERICK W. OSBORNE, Real Party in Interest and Respondent
- **Court:** California Supreme Court
- **Decided:** July 9, 1979
- **Citations:** 24 Cal. 3d 605; 156 Cal. Rptr. 718; 596 P.2d 1134; 1979 Cal. LEXIS 278
- **Precedential status:** Published
- **Opinion:** Concurrence by Newman
- **Judges:** Richardson, Newman
- **Cited by:** 142 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9601797

## Opinion text

NEWMAN, J.
— I concur, but I do not agree with this dictum of the majority: “[0]nly those governmental decisions which are adjudicative in nature are subject to procedural due process principles. Legislative action is not burdened by such requirements.” 1
*621 I do not know whether the hackneyed quotation from Bi-Metallic Co. v. Colorado (1915) 239 U.S. 441, 445 [ 60 L.Ed. 372, 375 , 36 S.Ct. 141 ], was an accurate description of lawmaking when Justice Holmes wrote it. More than a half-century later, however, we hardly should proclaim that fundamental rights in this country are protected from harmful statutes and harmful regulations only because of individuals’ “power, immediate or remote, over those who make the rule.”
Notice and hearing now characterize the great bulk of legislating and rulemaking. Often the forms of notice and hearing differ greatly from those that typify most adjudication procedures. 2 Yet the appropriate protections of due process are there; and we should not encourage legislators and rulemakers who conceivably yearn for a more comfortable past — when often they did proceed without notice, without hearing, in protective secrecy. (See Nathanson, Probing The Mind of the Administrator .. . (1975) 75 Colum.L.Rev. 721, 724 [“The Advent of Informal Rulemaking: From Bi-Metallic to Florida East Coast and the APA”]; 1 Davis, Administrative Law Treatise (2d ed 1978) p. 449 [“due process limitations in the background, always present but seldom brought to the foreground” (italics added)]; cf. id., § 6:31 [“Should Courts Require Notice and Comment Procedure for Rules the APA Exempts from That Requirement?”]; Davis, The Requirement of a Trial-Type Hearing (1956) 70 Harv.L.Rev. 193, 201 [“More harmful than helpful is the proposition . . . that hearings are required for judicial functions but not for legislative functions”]; see too Linde, Due Process of Lawmaking (1976) 55 Neb.L.Rev. 197.)
For the same reasons I think it is time to disapprove intended implications of the analogous dictum in San Diego Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205, 211 [ 118 Cal.Rptr. 146 , 529 P.2d 570 , 72 A.L.R.3d 973 ] (“it is black letter constitutional law that due process requires ‘notice and hearing’ only in quasi-judicial or adjudicatory settings and not with respect to the adoption of general legislation”).
On August 29, 1979, the judgment was modified to read as printed above.
(Ante, p. 612.) I wonder too why “the exercise of judgment, and the careful balancing of conflicting interests, [are] the hallmark of the adjudicative process.” (Id., p. 615.) Do they not mark also the work of conscientious legislators?
See, for example, article 4 of chapter 4.5 of the California Administrative Procedure Act (Gov. Code, §§ 11420-11425); compare Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 204 [ 149 Cal.Rptr. 1 , 583 P.2d 744 ]; Newman, Two Decades of Administrative Law in California: A Critique (1956) 44 Cal.L. Rev. 190, 193 (“The Bar has shown startlingly little concern regarding improvements in administrative rule making”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9601797. Public record. Not legal advice.