Untitled California Attorney General Opinion ( 1991 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 91-107
of :
: JULY 18, 1991
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE EDWARD R. JAGELS, DISTRICT ATTORNEY, KERN
COUNTY, has requested an opinion on the following question:
May a county grand jury present an accusation against a municipal court judge
pursuant to Government Code section 3060?
CONCLUSION
A county grand jury may not present an accusation against a municipal court judge
pursuant to Government Code section 3060.
ANALYSIS
Section 3060 of the Government Code ("section 3060") provides:
"An accusation in writing against any officer of a district, county, or city,
including any member of the governing board or personnel commission of a school
district or any humane officer, for wilful or corrupt misconduct in office, may be
presented by the grand jury of the county for or in which the officer accused is
elected or appointed. An accusation may not be presented without the concurrence
of at least 12 grand jurors."
Ensuing sections of the Government Code (§§ 3061-3074) provide for the trial of an officer so
accused, and removal from office upon conviction.
Each county is divided into municipal court and justice court districts. A municipal
court is established in each district having more than 40,000 residents. In districts having fewer
residents, a justice court is established. (Cal. Const., art. VI, § 5.) Municipal and justice court
judges are elected by the electors of their judicial district. (Cal. Const., art. VI, § 16(b).)
We are presented with the question whether section 3060 et seq. is applicable to a
municipal court judge to remove him or her from office for wilful or corrupt misconduct in office.
This question presents two sub-issues, that is, (1) whether a municipal court judge is a county or
district officer within the meaning of section 3060, and (2) whether section 3060 is applicable in
view of the provisions of the state Constitution which themselves provide procedures for the
removal of judges from office. These are removal by impeachment (Cal. Const., art. IV, § 18),
removal by the Supreme Court on recommendation by the Commission on Judicial Performance for
wilful misconduct in office and other improper conduct or disability (Cal. Const., art. VI, § 18), and
recall by the electors (Cal. Const., art. II, § 13).
Although provisions for impeachment and recall have been in the California
Constitution since 1879 and 1911 respectively, the provisions for removal of judges by the Supreme
Court on recommendation of the Commission on Judicial Performance are relatively new. The
commission was established by a 1960 amendment to the Constitution with the addition of Article
VI, sections 8 and 18. Section 8 established the commission and section 18 provides for its powers
and duties. As pertinent to our inquiry, Article VI, section 18 (c) provides:
"On recommendation of the Commission on Judicial Performance the
Supreme Court may. . . (2) censure or remove a judge for action . . . that constitutes
wilful misconduct in office, persistent failure or inability to perform the judge's
duties, habitual intemperance in the use of intoxicants or drugs, or conduct
prejudicial to the administration of justice that brings the judicial office into
disrepute. The Commission may privately admonish a judge found to have engaged
in an improper action or a dereliction of duty, subject to review in the Supreme Court
in the manner provided for review of causes decided by a court of appeal."
We conclude that for purposes of removal from office, a municipal court judge is a
state, not a local officer. We further conclude that the constitutional provisions for the removal of
judges are exclusive.
1. Municipal Court Judges Are State Officers
In our view it is clear from the 1966 revision of Article IV, sections 17 and 18 of the
California Constitution relating to impeachment that, for removal purposes, a municipal court judge
is a state and not a local officer. Prior to the 1966 revision, Article IV, sections 17 and 18 provided
as follows:
"Sec. 17. The Assembly shall have the sole power of impeachment, and all
impeachments shall be tried by the Senate. When sitting for that purpose, the
Senators shall be upon oath or affirmation, and no person shall be convicted without
the concurrence of two-thirds of the members elected."
"Sec. 18. The Governor, Lieutenant Governor, Secretary of State, Controller,
Treasurer, Attorney General, Chief Justice and Associate Justices of the Supreme
Court, judges of the district court of appeal, and judges of the superior courts, shall
be liable to impeachment for any misdemeanor in office; but judgment in such cases
shall extend only to removal from office and disqualification to hold any office of
honor, trust, or profit under the State; but the party convicted or acquitted shall
nevertheless be liable to indictment, trial, and punishment according to law. All
2. 91-107
other civil officers shall be tried for misdemeanor in office in such manner as the
Legislature may provide." (Emphasis added.)1
The 1966 constitutional revision combined Article VI, sections 17 and 18 into a
single provision, section 18, to read as it presently does. Subdivision (b) reads as follows:
"(b) State offices elected on a statewide basis, members of the State Board
of Equalization, and judges of state courts are subject to impeachment for
misconduct in office. Judgment may extend only to removal from office and
disqualification to hold any office under the State, but the person convicted or
acquitted remains subject to the criminal punishment according to law." (Emphasis
added.)
With respect to the amendment, the California Constitutional Revision Commission stated:
"Comment: Provisions enumerating officers subject to impeachment were
changed to include state officers elected on a statewide basis. Members of the State
Board of Equalization were specifically included because they are elected by district.
Language subjecting all judges of state courts to impeachment was inserted. This
expands the provisions of the existing section to include judges of the municipal and
justice courts.
"'Misdemeanor in office' was replaced with 'misconduct in office' inasmuch
as 'misdemeanor' literally concerns the demeanor of the officer, as distinguished from
misdemeanor used in the sense of a crime other than a felony [Reid v. Superior Court
(1919) 44 Cal. App. 349, 361, 186 P. 634].
"The words 'honor, trust, or profit' were deleted as unnecessary. 'Indictment,
trial and punishment' were replaced with 'criminal punishment,' but no change in
meaning has been effected.
1
Interestingly, Article IV, section 18 has since 1879 provided that "all other civil officers shall
be tried for misdemeanor in office as the Legislature may provide." (Emphasis added). Section
3060 and its predecessor, Penal Code section 758, were apparently enacted to complement the
impeachment provisions and provide a means of removing "other civil officers." (See Fitch v.
Board of Supervisors (1898) 122 Cal. 285, 293-295; Reid v. Superior Court (1919) 44 Cal. App. 349,
361.).
The restriction to "other civil officers" may have been a recognition that other judicial
officers (prior to the addition of Article VI, section 18 in 1960 with respect to the Commission on
Judicial Performance), except justices of the peace, could be removed for cause by the Senate on the
recommendation of the Governor, pursuant to Article VI, section 10, of the California Constitution.
(Why justices of the peace were excepted is not clear.)
Section 10 was repealed by the 1966 constitutional revision upon recommendation of the
California Constitution Revision Commission as obsolete in view of the addition of the Commission
on Judicial Performance in 1960. (See Cal. Const. Revision Com., Proposed Revision (1966) p.
101.)
3. 91-107
"The final sentence of the existing section was excised as unnecessary."2
Accordingly, under the Constitution, all state judges are considered together for
purposes of removal by impeachment. No distinction is made between those serving on appellate
courts and those serving at the trial court level. We believe it follows that all state judges, including
municipal and justice court judges, are state officers for purposes of removal from office. Therefore
a municipal court judge does not fall within the purview of section 3060 as a county or district
officer. (Cf., County of Sonoma v. Worker's Comp. Appeal Board (1990) 222 Cal. App. 3d 1133;
compare Villanazul v. City of Los Angeles (1951) 37 Cal. 2d 718.)
2. The Exclusivity of the Constitutional Provisions For
Removal
We believe that absent impeachment or recall proceedings, Article VI, section 18,
providing for removal by the Supreme Court on recommendation of the Commission on Judicial
Performance, provides the sole means of removing a judge from office for misconduct. The rule of
constitutional exclusivity is set forth in State Bar of California v. Superior Court (1929) 207 Cal.
323. In that case the State Bar sought to disbar a superior court judge for practicing law while a
judge. The court, in holding the State Bar had no authority to discipline the judge, stated inter alia
at pages 337-338):
"The offense of a judge of a court of record who violates the foregoing
provision of the constitution is not an offense against his profession, but against his
office. It amounts, if proven, to such misconduct in office as would subject him to
impeachment or to such other procedure to accomplish his removal from office as
the laws provide, but it does not and should not put him in peril of proceedings which
would destroy his eligibility to practice his profession or remove him from his
membership therein, for the obvious reason that so to do would be to permit the
accomplishment by indirection of his disqualification to hold, and hence necessarily
his removal from his office for which the constitution in sections 17 and 18 of article
IV thereof has provided a direct, if not an exclusive, mode of procedure. An apt and
well-reasoned line of authority upon this precise question is that supplied by the case
of Falloon v. Clark 61 Kan. 121 [58 P. 990], wherein the Supreme Court of
Kansas determined that 'wherever the constitution has created an office and fixed its
term and has also declared upon what grounds and in what mode an incumbent of
such office may be removed before the expiration of his term, it is beyond the power
of the legislature to remove such officer or suspend him from office for any other
reason or in any other mode than the constitution itself has furnished.' The said court
rests its authority for this conclusion upon Lowe v. Commonwealth, 3 Met. (Ky.)
237, and Throop on Public Officers, section 341, which latter authority states the
foregoing doctrine to be well settled. . ."
(See also People ex rel Happell v. Sischo (1943) 23 Cal. 2d 478, 494-495; Daigh v. Shaffer (1937)
23 Cal. App. 2d 449, 455; People v. Craig, 61 P.2d 934, decision vacated and appeal dismissed, 9
Cal. 2d 615, (cited with approval in Sischo, supra.)
2
See California Constitution Revision Commission Proposed Revision, Feb. 1966, p. 40. The
intent and purpose of the constitutional revision may be ascertained from the Constitutional Revision
Commission's recommendations. (Mosk v. Superior Court (1974) 25 Cal. 3d 474, 481.)
4. 91-107
This office has also recognized and applied this rule of exclusivity on a number of
occasions. (See 41 Ops.Cal.Atty.Gen. 140, 142-143, (1963) [Legislature without authority to enact
a statute permitting the temporary suspension of a judge]; 30 Ops.Cal.Atty.Gen. 56, 59 (1957)
[legislator not subject to common law rule of forfeiture of office for accepting second incompatible
office]; 25 Ops.Cal.Atty.Gen. 167, 168 (1955) [legislator entitled to salary upon conviction of felony
until removed by Assembly despite general forfeiture statutes for such a conviction].)
Additionally, an examination of the Ballot Pamphlet for the November 8, 1960
General Election, at which the provisions regarding the Commission on Judicial Performance were
added, discloses that article VI, section 18 was intended to provide "an alternative to existing
[removal] procedures as impeachment, recall, removal by the Legislature and removal for conviction
of a crime involving moral turpitude." (See Arguments to the Voters, Gen. Elec. (Nov. 8, 1960), p.
10, emphasis added.)3
Accordingly, we conclude that a municipal court judge is not subject to accusation
by the grand jury pursuant to section 3060 for wilful or corrupt misconduct in office.
****
3
Arguments presented to the voters may be used in ascertaining purpose and intent of measures
adopted by them. (Delaney v. Superior Court (1990) 50 Cal. 3d 785, 801-802.)
5. 91-107