Lead Opinion
Opinion
California Constitution, article VI, section 4, provides: “In each county there is a superior court of one or more judges. The Legislature shall prescribe the number of judges and provide for the officers and employees of each superior court. . . . [¡D The county clerk is ex officio clerk of the superior court in the county.” (See also Gov. Code, § 26800; all further section references are to this code.) Since 1977, section 69898, subdivision (d) (section 69898(d)) has authorized superior courts to transfer the duties of superior court clerk to an appointed court executive officer. In Zumwalt v. Superior Court (1989)
The sole question in this matter is whether such a transfer may be made effective before expiration of a county clerk’s elective term. We conclude it may.
I.
Section 69898(d) provides: “Notwithstanding any other provision of law, a superior court having an executive or administrative officer may, by local
Transfer of superior court duties under section 69898(d) enhances court efficiency, and is encouraged by section 68502.5, which directs the Trial Court Budget Commission (ibid.; see also Cal. Rules of Court, rule 1026, as amended eff. Jan. 25, 1995) to provide funding “incentives and rewards” to courts that implement transfer of court clerk duties under section 69898(d). (§ 68502.5, subd. (a)(4); see also Cal. Standards Jud. Admin., § 29, as amended eff. Jan. 25,1995 [Deering’s Cal. Ann. Codes, Rules (Appen.) Div. I., § 29 (1996 ed.) pp. 2354-2355]; Cal. Rules of Court, rule 991(b) & (c), as amended eff. Jan. 25, 1995.) At least 42 counties have done so.
In June 1994, petitioner was reelected Fresno County Clerk for a four-year term commencing January 2, 1995. By all accounts, her performance was and remains excellent. Nevertheless, after her reelection, but more than three months before the start of her second term, the Fresno County Superior Court judges, pursuant to section 69898(d), adopted local rule 22. The rule imposes the duties of superior court clerk on the court executive officer, and removes those duties—and corresponding employees (comprising about two-thirds of the county clerk’s office)—from the county clerk. The county board of supervisors approved the necessary budget and personnel transfers. The rule was set to take effect December 30, 1994.
In mid-December 1994, petitioner filed this original proceeding in the Court of Appeal, seeking a writ of mandate staying implementation of rule 22 and the county personnel and budget transfers until expiration of her second term. The Court of Appeal issued a temporary stay, and subsequently rendered a decision commanding the superior court to vacate rule 22. The majority acknowledged that the Legislature has the power to reallocate the superior-court-related duties of the county clerk, but concluded transfer of those duties before expiration of petitioner’s second term of office would unconstitutionally “imping[e] on the electorate’s right to vote.” Accordingly, and in order to avoid “mischief and absurdity,” the majority construed section 69898(d) to permit transfer only after expiration of petitioner’s second term.
II.
We have addressed the “timing” question posed here in only two cases, both antique. As the Court of Appeal acknowledged, the first decision,
In 1857, P.S. Mulford was elected to a two-year term as Sheriff of Calaveras County. At the time of election, the Calaveras Sheriff served also as “ex officio Collector of foreign miners’ tax or license.” (Squires, supra,
Mulford objected to the diminution of his duty and authority during his term of office. We framed the issue as follows: “Is it competent for the Legislature, having vested certain duties in a public officer, for the discharge of which he has given bond, and for whose services compensation is allowed, to take those duties and the fees from the office before the expiration of the term, and confer them on another officer?” (Squires, supra,
We noted that, under the Constitution, “Assessors and Collectors of town, county, and State taxes” were to be “elected by the qualified electors of the district, county, or town, in which the property taxed ... is situated.” (Cal. Const, of 1849, art. XI, § 13, italics added.) We questioned, however, whether the duty removed from Sheriff Mulford—licensing of foreign miners—was a “nеcessary appendage of the office of Tax Collector . . . .” (Squires, supra,
Squires, supra,
In the second case addressing the issue raised here, People v. Kelsey (1868)
In September 1865, C. C. Rynerson was elected to a two-year term as sheriff. At that time, a statute imposed on the sheriff “the duties of Tax Collector of the county.” (Kelsey, supra, 34 Cal. at pp. 472-473.) Thereafter, another statute enacted April 1866 and effective March 1867, transferred the office of “ex officio tax collector” from the county sheriff to the county treasurer. (Kelsey, supra,
As in Squires, supra,
Thereafter, in Mills v. Sargent (1868)
Kelsey, supra,
Kelsey, supra,
In People v. Gunn (1916)
In Kelly v. Kane (1939)
Finally, in Opinion No. 53-82,
The dissenting opinion labels Kane, supra,
As in Squires, supra,
As the Court of Appeal majority, petitioner, and the dissent herein all acknowledge, the duties of superior court clerk fall into the latter category. No provision of law requires that the person assigned the duties of superior court clerk be elected to perform those duties. It follows that the duties of superior court clerk may be transferred under local rule 22 to another county officer before expiration of petitioner’s term.
Petitioner and the dissent herein rely on Beck v. County of Santa Clara (1988)
As an initial matter, we reject the premise that section 69898 is ambiguous and needs judicial construction. Unlike the cases discussed, ante, at pages 1155-1160, in which both authorizing and implementing transfer legislation was enacted during the elected officer’s term, here, as noted above, section 69898(d) had, for over 17 years before pеtitioner’s reelection, expressly authorized transfer of superior court clerk duties from the county clerk to an appointed court officer. As Justice Martin, dissenting below, observed, “the Legislature, contrary to the majority’s surmise, did consider the question before us and so framed section 69898[(d)] as to provide that the statute’s provisions could be exercised by any superior court in this state at any time from and after the commencement by any county clerk of a new term beginning after January 1,1977. Each county clerk would have run for and, if successful, taken office with actual or constructive notice of the provisions of section 69898 and its possible effect upon them during their term of office, as would each voter who, like county clerks and all the rest of us, are presumed to know the law” (Italics added.)
In any event, for the reasons set out, ante, at pages 1155-1160, the Court of Appeal majority’s constitutional analysis (and that of the dissenting opinion herein) is incorrect. No infringement of the electorate’s franchise occurred here (and, contrary to the dissent, post, at pages 1165-1166, section 69898 does not implicate the electorate’s right to vote) because, quite simply, the voters have no right to elect the official who will perform the duties of clerk of the superior court. As noted above, California Constitution, article VI, section 4, gives to the Legislature authority to determine who will carry out the functions of court clerk. No provision of law requires the official who performs those duties to be elected. The electorate’s right to vote for county clerk does not negate the Legislature’s power to transfer from the county clerk duties that may be assigned to appointed officers in the first instance.
III.
Under section 26529, county counsel must defend or prosecute all civil actions in which the county or any of its officers is a party “in his or her official capacity.” County counsel declined to prosecute petitioner’s suit because of a conflict: he had earlier advised the board of supervisors that the challenged transfеr of duties would be legal. The Court of Appeal unanimously held that despite the outcome of the suit, petitioner was entitled to attorney fees under section 26529.
Respondent asserts this was error. It would appear, however, that only the County of Fresno, and not respondent court, has standing to raise this issue. The county was a party below but did not petition for review, and is not before us in this proceeding. In any event, were the issue properly before us, we would not disturb this aspect of the judgment. When petitioner was elected county clerk, she was obligated to act as ex officio clerk of the superior court. In seeking to retain those duties, she sued in her official capacity, and is entitled to reimbursement under section 26529.
We reverse the judgment of the Court of Appeal, and deny petitioner’s request for a writ of mandate. Petitioner shall be allowed to recover reasonable attorney fees, and her costs of suit.
Arabian, J., Baxter, J., George, J., and Werdegar, J., concurred.
Concurrence Opinion
I agree with the majority that the transfer of superior court related duties from petitioner, the elected county clerk, to a court executive officer was within the power of the superior court. Government Code section 69898, subdivision (d), so permits; the statute is clear and unambiguous and is therefore not in need of judicial construction as petitioner contends. Nothing in the language of the provision would appear to prohibit a transfer of powers at any time, even during the elected officer’s term. I also agree with the majority that the transfer does not violate the electors’ constitutional right to vote. They did so, and petitioner remains the county clerk. There was no “right” to elect a county clerk who would perform the precise duties of a clerk of the superior court.
At the same time, I question whether such precipitate action was justified as a matter of public policy. Petitioner was overwhelmingly reelected to a second four-year term as Fresno County Clerk. Her performance was thus approved by the voters. Yet less than three weeks before her second term began, her position was stripped of much of its duties. If the superior court determined after the election of the county clerk that a reallocation of duties was desirable, it could have made the transfer prospective only, i.e., commencing at the beginning of the next term of the county clerk. In that way, any potential appearance of the transfer as being punitivе would be negated and the positive aspects, in terms of increased efficiency or funding “incentives and rewards” from the Trial Court Budget Commission, would at most be deferred for a few short years.
Having offered the foregoing public policy caveat, however, I cannot deny the authority of the superior court to act as it did, regardless of appearance and consequences. Thus I concur with the majority.
Dissenting Opinion
Government Code section 69898, subdivision (d) authorizes the superior court of a county to transfer duties from an elected county clerk like the petitioner in this case to an administrator appointed by the superior court, but says nothing about the permissible timing of such a transfer. From this silence, the majority concludes that the Legislature intended to empower the superior court to implement a transfer of duties from the county clerk at any time. I cannot agree that the Legislature intended this interpretation of section 69898, in light of the harm it causes to the people’s right to vote.
The right to vote stands at the heart of our democratic institutions. “ ‘ “No right is more precious in a free country than that of having a voice in the election .... Other rights, even the most basic, are illusory if the right to vote is undermined.” ’ ” (Canaan v. Abdelnour (1985)
I
The Fresno County Clerk’s Office was the subject of inquiry and criticism by grand juries, courts, lawyers, the press, and the public from approximately 1974 to 1990. The criticism focused on allegations that the then incumbent county clerk was failing to perform the duties of the office adequately, including those affecting the superior сourt. As a consequence, petitioner Susan B. Anderson and four others ran for the office of county clerk in 1990. Petitioner, an attorney, campaigned on a promise to reform the office. Petitioner received 49.3 percent of the vote in the primary election and 84 percent in the ensuing runoff. In the same election in which she was elected, the voters rejected a ballot measure that would have made the county clerk’s office appointive rather than elective.
During her first term, from 1991 to 1995, petitioner did reform the office as she had promised the electorate. Petitioner was reelected county clerk on June 4, 1994, for a four-year term beginning on January 2, 1995. On October 4, 1994, after petitioner’s election but before the start of her second term, the judges of the Fresno County Superior Court adoptеd local rule 22 to take effect December 30, 1994. Rule 22, promulgated under the authority of Government Code section 69898, appoints the superior court’s executive officer the clerk of the superior court; it transfer two-thirds of the employees and more than one-half of the duties of the county clerk from petitioner’s office to the superior court. According to the presiding judge’s explanation to the Fresno County Board of Supervisors, rule 22 was adopted to promote court efficiency and to avoid the loss of potential funding by the state Trial Court Budget Commission. (Gov. Code, § 68502.5.)
Petitioner brought this action as an original proceeding in the Court of Appeal. The court stayed the implementation of rule 22 and subsequently
II
This case presents the question of whether Government Code section 69898, subdivision (d) (hereafter section 69898(d)) permits the transfer of superior court clerk duties from the county clerk before the expiration of the term for which the county clerk has been elected. By virtue of our state Constitution, the county clerk is ex officio the clerk of the superior court of that county. (Cal. Const., art. VI, § 4.) Section 69898(d) authorizes the superior court of a county, by promulgating a local court rule, to transfer duties related to the courts from the county clerk to an administrator appointed by the court.
In Zumwalt v. Superior Court (1989)
The question of whether section 69898(d) permits the superior court to transfer duties from the county clerk before the end of the county clerk’s term is one of legislative intent. The majority asserts that because section 69898(d) is silent on the timing of the transfer, it therefore unambiguously authorizes the superior court to effect the transfer at any time. I disagree. Because the statute does not address the question of timing, the ordinary meaning of its language does not resolve one way or the other whether the superior court is authorized to take away the bulk of a county clerk’s duties after the clerk’s election and before the end of the term fоr which the clerk was elected. On its face, the statute is open to either interpretation.
When a statute delegates a power but is silent as to the manner in which the power may be exercised, it may be appropriate to infer from the statute’s
Thus, in deciding the issue of statutory interpretation presented here— whether section 69898(d) authorizes a superior court to transfer duties from a county clerk at any time—it is appropriate to examine the impact on the constitutional right to vote if superior courts possessed that transfer power. In my view, the serious interference with the right to vote outlined below that would result from granting a superior court the power to remove, at any time, duties from the county clerk, makes it improbable that the Legislature intended by the statute’s silence to grant the superior court that power. Accordingly, аdhering to our duty to construe statutes to avoid constitutional questions, I conclude that section 69898(d) does not authorize a superior court to transfer duties from the county clerk between the time of the clerk’s election and the end of the term to which the clerk was elected. Because I decide this issue as a matter of statutory construction, it is unnecessary for me to decide, as the majority does, whether it would be constitutional for the Legislature to enact such a statute.
I now turn to an examination of the effect of section 69898(d) on the constitutional right to vote, in order to illuminate the probable intent of the Legislature and the proper construction of section 69898(d). “It is beyond cavil that ‘voting is of the most fundamental significance under our constitutional structure.’” (Burdick v. Takushi (1992)
In particular, this court has recognized that taking away the major duties of an elected officeholder before the expiration of the term of office can infringe the right to vote. We so concluded in People v. Kelsey (1868)
Forty-eight years later, a similar issue arose in People v. Gunn (1916)
The majority, however, reads Kelsey, supra,
In constructing its distinction between nontransferable elective duties and transferable appointive duties, the majority also relies on Attorney-General v. Squires (1859)
The final case that the majority relies on in drawing its distinction between duties assignable to elective and appointive officers, Kelly v. Kane
The majority also relies on a 1953 opinion of the Attorney General as support for its distinction between nontransferable elective duties and transferаble appointive duties. (
There is another consideration that weighs against the majority’s construction of section 69898(d). As the majority notes (maj. opn., ante, at p. 1155), the statute’s purpose is to enhance the efficiency of court operations by permitting a superior court to transfer duties whеre appropriate from the county clerk to a court administrator. As I observed earlier, the statute is silent on the timing of such a transfer. The majority concludes from this silence that a superior court may cause the transfer to occur at any time. Henceforth, however, what is to prevent the superior court judges in a particular county from awaiting the outcome of a county clerk election and then taking away important duties from the clerk out of antipathy to the person elected clerk or to the clerk’s policies with respect to court-related duties? It is quite dubious that, in enacting section 69898(d), the Legislature intended any transfer of duties from a county clerk to be grounded on the identity or policies of the person elected clerk, rather than on the promotion of judicial efficienсy.
In sum, I presume that in enacting section 69898(d) the Legislature was mindful of the respect due to the people’s right to vote; of the “ ‘mandate that the government must, if possible, avoid any feature that might adulterate, or, indeed, frustrate’ ” (Canaan v. Abdelnour, supra,
For these reasons, I would construe section 69898(d) so as not to impinge on the people’s right to vote by depriving the county clerk of the major duties of the office to which the people have elected the clerk. Accordingly, I would hold, as the Court of Appeal did, that this statute grants the superior court the power to transfer duties from the county clerk subject to the implied limitation that such a transfer be made effective only at the end of the term to which the clerk has been elected.
Notes
Section 69898(d) provides in full: “Notwithstanding any other provision of law, a superior court having an executive or administrative officer may, by local rule, specify which of the powers, duties and responsibilities required or permitted to be exercised or performed by the county clerk in connection with judicial actions, proceedings and records shall be exercised or performed by the executive or administrative officer. The county clerk shall be relieved of any obligation imposed on him [or her] by law with respect to these specified powers, duties and responsibilities, to the extent the local rule imposes on the executive or administrative officer the same powers, duties and responsibilities.”
I concur in the majority’s holding (maj. opn., ante, at p. 1162) that petitioner is entitled to recover her attorney fees and costs of suit.