Untitled California Attorney General Opinion ( 1993 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-1204
of :
: MAY 4, 1993
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY,
VENTURA COUNTY, has requested an opinion on the following question:
Does a county grand jury have the authority to investigate and report on the fiscal and
administrative operations of the executive officer of a superior court?
CONCLUSION
A county grand jury does not have the authority to investigate and report on the fiscal
and administrative operations of the executive officer of a superior court.
ANALYSIS
The primary powers and duties of a county grand jury are set forth in Penal Code
section 914 et seq. In addition to its duty to inquire into all public offenses committed in the county
(Pen. Code, § 917), a grand jury is given certain "oversight" powers with respect to county, city, and
district affairs. (Pen. Code, § 925 et seq.) Germane to our inquiry herein are Penal Code sections
925, 928, and 933. Section 925 provides:
"The grand jury shall investigate and report on the operations, accounts, and
records of the officers, departments, or functions of the county, including those
operations, accounts, and records of any special legislative district or other district
in the county created pursuant to state law for which the officers of the county are
serving in their ex officio capacity as officers of the districts. The investigations may
be conducted on some selective basis each year, but the grand jury shall not duplicate
any examination of financial statements which has been performed by or for the
board of financial statements which has been performed by or for the board of
supervisors pursuant to Section 25250 of the Government Code; this provision shall
not be construed to limit the power of the grand jury to investigate and report on the
1 92-1204
operations, accounts, and records of the officers, departments, or functions of the
county. The grand jury may enter into a joint contract with the board of supervisors
to employ the services of an expert as provided for in Section 926." (Emphasis
added.)
Section 928 provides:
"Every grand jury may investigate and report upon the needs of all county
officers in the county, including the abolition or creation of offices and the
equipment for, or the method or system of performing the duties of, the several
offices. Such investigation and report shall be conducted selectively each year. The
grand jury shall cause a copy of such report to be transmitted to each member of the
board of supervisors of the county." (Emphasis added.)
Section 933 provides:
"(a) . . . No later than the end of each fiscal or calendar year of a county,
each grand jury impaneled during that fiscal or calendar year shall submit to the
presiding judge of the superior court a final report of its findings and
recommendations that pertain to county government matters other than fiscal matters
during the fiscal or calendar year.
"(b) No later than the end of each fiscal or calendar year, each grand jury
impaneled during that fiscal or calendar year shall submit to the presiding judge of
the superior court a final report of its findings and recommendations that pertain to
fiscal matters of county government during the fiscal or calendar year of the county
. . . ." (Emphasis added.)
Accordingly, sections 925, 928, and 933 of the Penal Code contemplate an
investigation of the administrative and fiscal operations of county officers and departments and
reports thereon. We are asked herein whether this grant of authority encompasses investigating the
executive officer of a superior court.1 We conclude that it does not.
We need not belabor the point that both the superior court and municipal court are
state agencies established pursuant to Article VI, sections 4 and 5 of the California Constitution.
(See County of Sonoma v. Workers' Comp. Appeals Bd. (1990) 222 Cal. App. 3d 1133, 1136-1137;
74 Ops.Cal.Atty.Gen. 190, 192 (1991); 74 Ops.Cal.Atty.Gen. 111, 114 (1991). However, despite
this fact, we have previously concluded in several opinions that Penal Code sections 925, 928, and
933 empower a grand jury to investigate and report upon the activities of local judicial officers.
In 67 Ops.Cal.Atty.Gen. 519 (1984) we concluded that a grand jury had authority to
audit the office of the Marshal of the Municipal Courts of Los Angeles County. We reasoned:
"Nevertheless, the county is not without responsibility and authority
respecting the office of marshal. In Los Angeles County, the Board of Supervisors
must provide suitable quarters including heating, lighting, janitorial services,
furniture, books, and supplies necessary for carrying out the duties of the marshal.
(§§ 72652, 71002, 68073.) Further, the salaries of the judges, clerks, marshals, and
1
The authority of a grand jury to investigate public offenses and misconduct in office (Pen. Code,
§§ 917, 918, 919, 922; Gov. Code, § 3060) is beyond the scope of this opinion.
2 92-1204
other officers or attaches of the municipal courts must be paid by the county in which
the court is situated out of the salary fund or, if there is none, the general fund of the
county. (§§ 71220, 72651; 56 Ops.Cal.Atty.Gen., supra, 321.) In addition to their
salaries, the marshal, assistants, and deputies of municipal courts, except custodians,
are allowed their actual and necessary incidental expenses incurred in the actual
performance of their duties, including traveling expenses. (§§ 72111, 72651.)
"Upon such considerations it has been determined that officers and attaches
of the municipal court may be considered for many purposes as employees of the
county. (Marin v. County of Contra Costa, supra, 8 Cal.App.3d at 860; Villanazul
v. City of Los Angeles (1951) 37 Cal. 2d 718, 722-723; 64 Ops.Cal.Atty.Gen., supra,
270; 56 Ops.Cal.Atty.Gen., supra, 324-325.) We have previously concluded that the
Marshal of Municipal Courts, County of San Diego, is one of the officers of the
county subject to audit by the grand jury within the provisions of Penal Code section
925. (56 Ops.Cal.Atty.Gen. 41, supra.) It must be presumed that this interpretation
has come to the attention of the Legislature, and if it were contrary to the legislative
intent that some corrective measure would have been adopted over the course of the
intervening decade. (California Correctional Officers' Assn. v. Board of
Administration (1978) 76 Cal. App. 3d 786, 794; 67 Ops.Cal.Atty.Gen. 23, 26-27
(1984).) Consequently, it is concluded that the Los Angeles County Grand Jury is
authorized to conduct an audit of the Office of Marshal of the Municipal Courts in
that county." (Id. at p. 522, fns. omitted.)
In 56 Ops.Cal.Atty.Gen. 41 (1973), while concluding that the Marshal of the
Municipal Court of San Diego County was subject to grand jury audit under section 925 of the Penal
Code, we emphasized the fact that the county paid the salaries and expenses of the court. We stated:
"It would be incongruous to give the marshal extensive authority, and to make the county
responsible for his fiscal and physical support, without requiring commensurate accountability . .
. ." (Id., at p. 43.) We then concluded in summary:
"In view of the function and character of the grand jury, the local character
and nature of the functions of the office of marshal, the analogous position of the
sheriff, the constitutional history in creating the present municipal court districts, the
absence of any infringement upon the judicial decision-making process, and the
liberality with which statutes involving the investigatory powers of the grand jury are
to be construed, it is concluded the marshal of San Diego County is a county officer
for purposes of Penal Code section 925, and thus is subject to audit by the grand
jury." (Id., at p. 44.)
But for the changes in the trial court system since 1985, we would consider the
foregoing opinions to be controlling on the question presented herein. However, we believe that
recent statutory changes now dictate a different conclusion concerning a grand jury's powers to audit
local court officers including the executive officer of a superior court.
Initially, we note that since 1976 (see Stats. 1976, ch. 1353) the superior court of any
county has had the authority to appoint an executive officer pursuant to Government Code section
698982 and assign to him administrative duties and any of the duties of the county clerk as ex-officio
clerk of the court. Such an executive or administrative officer is clearly an employee of the court.
2
All subsequent code section references are to the Government Code unless otherwise indicated.
3 92-1204
(See Zumwalt v. Superior Court (1989) 49 Cal. 3d 167; cf. Seidler v. Municipal Court (1993) 12
Cal. App. 4th 1229 [municipal court administrator].)
With respect to recent state funding legislation for the trial courts, the initial statutory
scheme was the Trial Court Funding Act of 1985 (Stats. 1985, ch. 1607). Since then the trial courts
have been undergoing significant reformation, with the funding legislation being amended in 1988
(Stats. 1988, ch. 945) and in 1992 (Stats. 1992, chs. 1199, 1369). With respect to trial court
consolidation, the Legislature recently enacted the Trial Court Realignment and Efficiency Act of
1991 (Stats. 1991, chs. 90, 189). In our view, an examination of the provisions of these new laws
leads to the conclusion that the Legislature intends for the "oversight" of superior and municipal
courts and their functions to rest with the Judicial Council, the State Controller, and ultimately the
Legislature itself.
It is beyond the scope of this opinion to attempt a detailed analysis of the foregoing
new enactments. Suffice it to say that the purpose of the court funding legislation, now known as
the Brown-Presley Trial Court Funding Act (§§ 77000-77400), is to shift the costs of operating the
local court system from the counties to the state. Under the statutory scheme, counties which have
adopted the provisions of the law, that is "option counties" (§ 77004), receive "block grants" from
the state to support court operations for all trial courts (§§ 77001-77003).3 As presently cast, section
77200 provides state money for 55 percent of the annual costs of a county's court operations for the
1992-1993 fiscal year, increasing 5 percent each year to 70 percent for fiscal year 1995-1996.
The principal reform of the second legislative scheme, the Trial Court Reorganization
and Realignment Act, is contained in section 68112. It requires each superior, municipal, and justice
court to prepare and submit to the Judicial Council a trial court coordination plan which, in essence,
provides for (1) the cross-assignment of judges between courts of different jurisdictions within the
county and (2) the consolidation of court operations to improve efficiency and reduce costs. (See
also § 68505.)
These court reform laws include statutorily required audits and reports to the state.
Section 77205 requires each county to submit detailed financial reports to the State Controller on
court operations. (See also § 71383.) The State Controller in turn has audit responsibilities and in
turn must make reports to the Legislature. Section 77205 provides:
"(a) An option county shall receive block grant disbursement from the state
quarterly.
"(b) The Controller shall adopt appropriate regulations for recordkeeping,
accounting, and reporting by an option county in order to determine all county
revenues, including filing fees, fines, and forfeitures, and all expenditures relating
to court operations.
"(c) The county shall submit to the Controller for each full fiscal year that
the option county participates in the program, in the form and manner prescribed by
the Controller, a report of all revenues, including filing fees, fines, and forfeitures,
and all expenditures relating to court operations, for the prior 12-month period
ending June 30. The report shall be submitted by each option county to the
Controller on or before October 1 of the fiscal year following the reporting year.
3
All counties in the state have in fact opted into the program.
4 92-1204
"The Controller shall compile and submit to the Legislature reports of the
financial transactions of each option county relating to court operations.
". . . . . . . . . . . . . . . . . . . . . . . . . .
"(e) The Controller shall perform and publish financial and compliance
audits of the reports submitted by option counties under this chapter for the first full
fiscal year for each county opting under this chapter. The Controller shall report the
results of these audits to the Legislature."
As to local court administration programs, section 68113 requires each county to
submit progress reports to the Judicial Council on its coordination plans, and the Judicial Council
in turn must report its findings to the Legislature. Section 68113 provides:
"(a) The superior, municipal, and justice courts in each county shall submit
a report to the Judicial Council on progress towards achieving the cost reduction
goals associated with the coordination plans and factors impacting the cost of court
operations and the collection of revenues. The report shall also include financial
information prepared by the county auditor on expenditures for court operations and
revenues according to a uniform chart of accounts adopted by the Judicial Council.
The reports shall be submitted quarterly on or before the first day of the third month
following the end of the quarter, except the fourth-quarter report shall be submitted
on the first day of the fourth month following the end of the fourth quarter.
"(b) For purposes of the reporting requirements of this section, a court or
courts in a county may petition the Judicial Council to permit division of the court
or courts into smaller administrative units corresponding to the organization of the
court or courts under a coordination plan where reporting courtwide would impose
an undue burden because of the number of judges or the physical location of the
division of the court or courts.
"(c) The Judicial Council shall submit a report to the Legislature on or before
November 1 following the end of each fiscal year setting forth all of the following:
"(1) The revenues and expenditures for each superior, municipal, and justice
court in the state and statewide totals.
"(2) A summary of the savings achieved by each county and statewide.
"(3) Factors impacting the cost of court operations and the collection of
revenues."
Finally, section 68520 requires each superior, municipal, and justice court to provide
the Judicial Council with complete information regarding the number, classification, salary, and
benefits of every officer and employee involved in "court operations" (§ 77003).
In view of the foregoing court reform laws, with their required reports and audits on
administrative and fiscal affairs, we believe that our prior opinions discussed at the outset regarding
sections 925, 928 and 933 of the Penal Code no longer reflect current law. The Legislature has now
placed trial court "oversight" duties in various state officers, the Judicial Council, and ultimately,
in itself, as the process of court reform has evolved. In so doing, the Legislature has removed the
5 92-1204
local courts from being treated as county agencies for purposes of a grand jury's investigating and
reporting on their fiscal and administrative operations.
Insofar as it may be urged that state audit and review should not preclude additional
grand jury oversight by virtue of the county money still being contributed to the trial court funding
program, we note that the state reports include such county funds and that a county board of
supervisors may order its own audit and report pursuant to section 25250. (See also §§ 71010,
71383.) Section 25250 provides:
"At least biennially the board of supervisor shall examine and audit, or cause
to be audited, the financial accounts and records of all officers having responsibility
for the care, management, collection, or disbursement of money belonging to the
county or money received or disbursed by them under authority of law. The audit
shall encompass the immediately preceding two-year period, or any portion thereof
not included in a prior audit. This financial examination or audit may be performed
in coordination with the investigations conducted by the grand jury under Section
925 of the Penal Code, or the board of supervisors may resolve to accept reports
delivered pursuant to Section 933 of the Penal Code in lieu of its own separate
examination if such reports are found to fulfill some or all of the requirements of this
section. In connection with the requirements of this section and Section 25253, the
board of supervisors may employ the services of an independent certified public
accountant or licensed public accountant to perform an examination of the financial
statements in accordance with generally accepted auditing standards."
In short, we believe that the specific directives found in the court reform laws control
the earlier and more general legislative grants of authority contained in Penal Code sections 925, 928
and 933. (See, e.g., Woods v. Young (1991) 53 Cal. 3d 315, 324-325.) Stated otherwise, the grand
jury no longer has oversight of the trial courts and their officers since that now reposes in state
officers, the Judicial Council, and the Legislature itself. Treated as state agencies rather than county
agencies for purposes of auditing their operations, the trial courts are outside the scope of Penal
Code sections 925, 928, and 933.
In answer to the question presented, we conclude that a county grand jury does not
have the authority to investigate and report on the fiscal and administrative operations of the
executive officer of a superior court.
*****
6 92-1204