Zumwalt v. Superior Court

MOSK, J., Concurring and Dissenting.

I concur in the judgment.

The majority correctly conclude that both Government Code section 698981 and the local rule do not offend the California Constitution; however, their view that the duties of the county clerk as clerk of the superior court are purely statutory, and thus subject entirely to the control of the Legislature, fails to respect the command of article VI, section 4, of the California Constitution (hereafter article VI, section 4). I therefore dissent from that portion of the opinion.

The majority seem more interested in the past than the present, more interested in language that has been deleted from the Constitution than language that remains. Article VI, section 4, now provides in pertinent part, “The county clerk is ex officio clerk of the superior court in the county.” The majority purport to find support for their view in language from the 1849 Constitution.2 That language, carried over to the present Constitution, was deleted in 1966. While it is often useful to examine the history of a constitutional provision, we must be mindful that the goal of such examination is to assist in interpreting the Constitution as it now reads. The majority correctly recognize that the issue “is solely one of constitutional construction” (maj. opn., ante, at p. 179, fn. 13), yet precious little attention is given to interpreting the two clauses of article VI, section 4. I believe the majority’s reliance on constitutional and statutory history is misplaced, and that its view fails to give any significance to the supreme law of our state.

Article VI, section 4, necessarily prohibits the Legislature from depriving the county clerk of all his duties as superior court clerk. Article I, section 26, of the California Constitution admonishes that “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” This interpretive principle “ ‘not only commands that [constitutional] provisions shall be obeyed, but that disobedience of them is prohibited. Under the stress of this rule, it is the duty of this court to give effect to every clause and word of the constitution, and to take *182care that it shall not be frittered away by subtle or refined or ingenious speculation. The people use plain language in their organic law to express their intent in language which cannot be misunderstood, and we must hold that they meant what they said.’ ” (State Board of Education v. Levit (1959) 52 Cal.2d 441, 460 [343 P.2d 8], quoting Oakland Paving Co. v. Hilton (1886) 69 Cal. 479, 512 [11 P. 3].) In language beyond misapprehension, the Constitution announces that the county clerk, by virtue of his office, is clerk of the superior court.

The majority appear to adopt the Court of Appeal’s determination that the constitutional designation of county clerk as clerk of the superior court serves merely as a default provision in the event the Legislature does not otherwise provide for court clerks. This interpretation rests on a tortured reading of the language of article VI, section 4. To accept the majority’s conclusion that this language authorizes the Legislature to transfer all the duties performed by the county clerk in his capacity as clerk of the superior court, we must presume that the general provision of the first clause (“The Legislature shall prescribe the number of judges and provide for the officers and employees of each superior court.”) controls the specific provision of the second clause (“The county clerk is ex officio clerk of the superior court in the county.”). We are not permitted to do so. (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637 [268 P.2d 723].) Although article VI, section 4, authorizes the Legislature to provide generally for “the officers and employees” of superior courts, this prerogative cannot reach an office that has been specifically provided for in an alternative fashion in the same constitutional section.

Moreover, the majority’s reading fails to harmonize the two clauses of article VI, section 4. To interpret the provision as urged by the majority is to reduce the second clause of article VI, section 4, to surplusage. Such a construction fails to comport with our obligation to “give significance to every word in the constitutional text.” (ITT World Communications, Inc. v. City and County of San Francisco (1985) 37 Cal.3d 859, 867 [210 Cal.Rptr. 226, 693 P.2d 811].) To ensure that “the general and special provisions operate together, neither working the repeal of the other” (People v. Western Air Lines, Inc., supra, 42 Cal.2d at p. 637), I would hold that the Legislature may not authorize a total reassignment of the court clerk’s duties and thereby, in effect, destroy the office.

The majority place great emphasis on the Legislature’s role over the years in establishing the duties and responsibilities of the court clerk. The Legislature has indeed assumed significant responsibility for delineating the court-related duties of the county clerk, and this tradition of legislative involvement should bear significantly on our understanding of the scope of the *183duties that may not constitutionally be taken from the county clerk as clerk of the superior court. However, the historical authority of the Legislature to articulate the particular tasks of an office is not synonymous with the power to effectively eliminate the office altogether. As stated in St. John v. Superior Court (1978) 87 Cal.App.3d 30 [150 Cal.Rptr. 697], “Since ... the Legislature is generally entrusted with the authority to prescribe the powers and duties of the office, those powers and duties may be increased or diminished, provided that, in the case of a constitutional office, a proper distinction is maintained between diminution of duties and destruction of the office.” (Id. at p. 40.)

Legislative attempts to transfer the court-related duties of an elected county clerk to a court-appointed officer are not limited to this state or to this century. In 1843, the New York Legislature passed a law detaching the clerkship of the court of common pleas from the elected county clerk, and gave the appointment to three judges of that court. The appellate court struck down the law on the ground that it violated the state constitutional provision requiring that county clerks be elected. The court held, “By directing the mode of appointing particular officers, the framers of the constitution certainly did not intend to take from the legislature the power to regulate the duties of such officers, either by prescribing new duties to be performed, or directing the discontinuance of duties which the public interest no longer required to be performed by any one. . . . But when the legislature, as in this case, assumes the power to take from a constitutional officer the substance of the office itself, and to transfer it to another who is to be appointed in a different manner and to hold the office by a different tenure than that which was provided for by the constitution, it is not a legitimate exercise of the right to regulate the duties or emoluments of the office . . . .” (Warner v. The People (1845 N.Y.) 2 Denio 272, 281.) Here, too, if the language of article VI, section 4, is to retain force and effect, the county clerk must serve as superior court clerk in more than name alone. Legislative authority over the scope of the county clerk’s court-related duties remains subordinate to this fundamental constitutional constraint.

Indeed, a close reading of section 69898, guided by the strong presumption in favor of constitutionality (People v. Globe Grain & Mill. Co. (1930) 211 Cal. 121, 127 [294 P. 3]), leads to the conclusion that the Legislature did not intend to allow superior court judges to destroy the office of court clerk. Subdivision (d) of the statute permits a superior court to specify “which of the powers, duties and responsibilities required or permitted to be exercised” by the county clerk shall be exercised by the executive officer. The mandate is carefully limited. The statute reads “which of the powers” not “any” or “all” of the powers. “Required” must mean required by statutes, not by the Constitution, because only statutes define the duties and *184specifically impose them on the clerk; the Constitution is silent on this point. Although the second sentence of subdivision (d) relieves the clerk of “any obligation imposed on him by law with respect to these specified powers, duties and responsibilities,” the term “any obligation” is limited by the subsequent phrase, “these specified powers,” which plainly refers to the duties permitted to be transferred by the first sentence. Because the first sentence permits only a limited, and not a total, transfer of the clerk’s duties, the language of the second sentence is not constitutionally fatal.

Similarly, subdivision (c) of section 69898 presents no constitutional difficulty on its face. It provides that the executive officer “has the authority of a clerk of the superior court.” When read in conjunction with subdivision (d), it is evident that this “authority” is not the entire authority of the court clerk; rather, it is only the authority to perform the particular tasks that the court assigns to the executive officer.

Like section 69898, the challenged local rule is carefully limited. In sharp contrast to the local rule held invalid in St. John v. Superior Court, supra, 87 Cal.App.3d 30, which purported to transfer all the powers, duties and responsibilities exercised by the county clerk in his capacity as clerk of the court, the rule enacted by the Superior Court of San Diego County does not affect many of the duties that petitioner performs in his capacity as clerk of that court. According to respondents, petitioner maintains supervision over, inter alia, the keeping of indexes of plaintiffs and defendants in civil actions and of defendants in criminal actions (§ 69842); the issuance of process, notices and summons (§ 69843; Code Civ. Proc., § 412.10); the keeping of minutes and court records and the entering of judgments (§ 69844); the microfilming of records (§ 69844.5); the keeping of a register of actions or its alternative (§§ 69845, 69845.5); the acceptance of papers for filing (§ 69846); the filing of briefs on appeal to the appellate department of a superior court (Cal. Rules of Court, rule 105(e)); the collection of fees for filing (§§ 26820-26863); the preparation and the issuance of writs of attachment (Code Civ. Proc., § 484.370; Gov. Code, § 26828); the preparation of the clerk’s transcript on appeal (Cal. Rules of Court, rules 4.5, 5); the destruction of court records (§§ 69503, 69503.1); the certification of abstracts of judgment (Code Civ. Proc., § 674); the keeping of a judgment book or its equivalent (Code Civ. Proc., §§ 668, 668.5); the keeping of money deposited into court (Code Civ. Proc., § 573); acceptance for filing of confessions of judgment (Code Civ. Proc., § 1134); and entry of defaults (Code Civ. Proc., § 585, subd. (a)). Plainly, petitioner retains a substantial portion of his duties under the challenged local rule. His office is not destroyed and the constitutional mandate is not violated.

Moreover, the duties transferred by the local rule are those most intimately associated with the work of the judges. The effect of the local rule is *185to transfer the personnel performing courtroom clerk and calendaring duties to the supervision of the executive officer. These personnel work most closely with superior court judges in the daily operation of the courts. The transfer of the court clerk’s functions most intimately related to the operation of the trial court is consistent with the constitutional interest in judicial autonomy. Particularly relevant to this case is the dictum in Houston v. Williams (1859) 13 Cal. 24, 29, that the court “must necessarily exercise control [over court records] that justice may be done to litigants before it.” As a coordinate branch of government, the courts are vested by the Constitution with an inherent “power of self-preservation . . . [and] the power to remove all obstructions to [their] successful and convenient operation.” (Millholen v. Riley (1930) 211 Cal. 29, 33 [293 P. 69].) The exercise of this power, in the form of the limited transfer of duties under the local rule, is thus consistent with both the constitutional doctrine of inherent power and the mandate of article VI, section 4, that the county clerk is ex officio clerk of the superior court.

In sum, I have no quarrel with the majority’s recognition of the Legislature’s significant responsibility in shaping the duties of the court clerk. That responsibility must, however, be exercised within the limits of the Constitution. The majority’s sweeping conclusion that validates not only the carefully limited local rule challenged here but also a rule that would destroy the office of court clerk by transferring all its duties rides roughshod over the Constitution. I therefore concur in the judgment only.

Broussard, J., concurred.

All further statutory references are to the Government Code unless otherwise indicated.

“The Legislature shall provide for the election of County Clerks . . . , and shall fix their duties.” (Cal. Const, of 1849, art. VI, § 7, italics added.)