CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION et al., Petitioners and Appellants, v. LONG BEACH UNIFIED SCHOOL DISTRICT et al., Respondents and Respondents.
This dispute arises under the Educational Employment Relations Act (Gov.Code, § 3540, et seq.) and a provision of the Education Code requiring school districts to grant paid leaves of absence to non-teaching employees “regularly called for jury duty.” (Ed.Code, § 44037.) We hold the trial court erred by refusing to enforce a mandatory provision of the Education Code and instead ruling the Public Employees Relations Board had exclusive jurisdiction over the dispute. We also hold an employee is entitled to a paid leave under Education Code section 44037 whether she serves as a grand juror or a petit juror. Since the school district has asserted other defenses to this action, we remand the case to the trial court to take evidence on these additional issues.
I. Statement of Facts and Proceedings Below
Appellants, California School Employees Association (“CSEA”) 1 and Sonya Richardson, filed a Petition for Writ of Mandate (“the Petition”) in Los Angeles County Superior Court on October 20, 1982, to compel respondent Long Beach Unified School District (“the District”) 2 to reinstate Richardson to paid status for the period of September 14, 1981, through June 18, 1982. During those nine months Richardson served as an Orange County grand juror. Richardson has been employed as a media assistant for the District since September 7, 1978. This is a classified position. Richardson applied for a paid leave of absence for the period of grand jury service. The District denied this request but did grant her an unpaid leave.
In the Petition CSEA alleged the District violated Education Code section 44037 by refusing to grant Richardson a paid leave of absence while she was on grand jury service. That statute provides a school district “shall grant leave of absence to any [classified] employee ․ regularly called for jury duty in the manner provided for by law. ․ with pay up to the amount of the difference between the employee's regular earnings and any amount he received as juror's fees.”
In its answer to the Petition the District admitted it refused to grant Richardson a paid leave of absence but denied it was required to do so under the Education Code. The District also asserted various affirmative defenses. First, the District claimed CSEA's failure to file a grievance under the procedures set forth in the collective bargaining agreement precluded the bringing of a court action. Second, the District claimed the action was under the exclusive jurisdiction of the Public Employees Relations Board (“PERB”) according to provisions of the Educational Employment Relations Act (Gov.Code, § 3540, et seq.). Since CSEA did not file an unfair practice charge with PERB, according to the District, a court action was precluded for failure to exhaust administrative remedies.
On April 21, 1983, the superior court accepted the District's second argument and denied the Petition. The stated ground for the ruling was CSEA's failure to exhaust administrative remedies by failing to first present the dispute before PERB.3
II. The Trial Court Erred by Refusing to Exercise Its Jurisdiction to INTERPRET AND Enforce a Mandatory Provision of the Education Code.
The first issue presented by this appeal is whether PERB or the courts have jurisdiction over CSEA's claim Richardson was entitled to a paid leave. The claim concerns whether Education Code section 44037 requires a school district to grant a classified employee paid leave while she serves on a grand jury as distinguished from a petit jury.
The parties agree PERB's jurisdiction is derived from the Education Employment Relations Act (“EERA”). The purpose of the Act is set forth in Government Code section 3540, which states:
“It is the purpose of this chapter to promote the improvement of personnel management and employer-employee relations within the public school systems in the State of California by providing a uniform basis for recognizing the right of public school employees to join organizations of their own choice, to be represented by such organizations in their professional and employment relationships with public school employers, to select one employee organization as the exclusive representative of the employees in an appropriate unit, and to afford certificated employees a voice in the formulation of educational policy. Nothing contained herein shall be deemed to supersede other provisions of the Education Code and the rules and regulations of public school employers which establish and regulate tenure or a merit or civil service system or which provide for other methods of administering employer-employee relations, so long as the rules and regulations or other methods of the public school employer do not conflict with lawful collective agreements.”
To promote this purpose the EERA provides for statutory collective bargaining 4 between public school employers and exclusive representatives of public school employees. (Gov.Code 3543.1.) Government Code section 3543.2 provides the scope of collective bargaining “[s]hall be limited to matters relating to wages, hours of employment, and other terms and conditions of employment.” That code section then defines a “term and condition of employment” as “health and welfare benefits ․, leave, transfer and reassignment policies, safety conditions of employment, class size, procedures to be used for the evaluation of employees, organizational security ․, procedures for processing grievances ․, and the layoff of probationary certificated school district employees, ․”
Recently in California School Employees Assn. v. Travis Unified School Dist. (1984) 156 Cal.App.3d 242, 202 Cal.Rptr. 699 the First District Court of Appeal held PERB did not have jurisdiction to construe an Education Code section requiring school districts to compensate employees for expenses incurred while performing services for the district. The court explained,
“Because [Education Code] section 44032 mandates districts to reimburse employees for expenses incurred in performing services for them, such entitlement to reimbursement is not subject to and thus not within PERB's exclusive initial jurisdiction. [¶] ․ [T]he District's obligation to reimburse its employees for actual and necessary expenses is fixed by Statute and ․ exists independently of the collective bargaining agreement. Consequently, the employees may sue to enforce reimbursement and PERB jurisdiction does not lie.” (156 Cal.App.3d at p. 250, 202 Cal.Rptr. at pp. 703–704, citations omitted.)
The decision in CSEA v. Travis Unified covers the precise question presented here. Education Code section 44037 imposes a mandatory duty on school boards to grant a paid leave to classified employees “regularly called for jury duty in the manner provided for by law.” Since payment for jury service is mandatory, “[t]he District's obligation” to pay employees while on jury service “exists independently of the collective bargaining agreement.” The only question presented is whether the duty should be interpreted to include grand jury service. This is a matter of statutory interpretation which is not within the compass of PERB's jurisdiction. The trial court order thus was in error. (See also California School Employees Assn. v. Azusa Unified School Dist. (1984) 152 Cal.App.3d 580, 591–593, 199 Cal.Rptr. 635 [whether classified employees were entitled to be paid for local holidays under the mandate of Education Code section 45203 is within the court's rather than PERB's jurisdiction].) 5
The District nevertheless contends a distinction must be made between PERB's initial jurisdiction and its ultimate jurisdiction. Apparently the District is arguing even if it is clear PERB will not have jurisdiction to ultimately resolve a dispute, PERB must be given the opportunity to decline to exercise its jurisdiction anyway. We disagree.
Government Code section 3541.3, subdivision (b) vests in PERB the right to make an initial determination on its jurisdiction. However, where an employee organization brings suit to compel the District to fulfill a mandatory obligation imposed by the Education Code PERB does not have jurisdiction, initial or otherwise. (California School Employees Assn. v. Travis Unified School Dist., supra, 156 Cal.App.3d at p. 250, 202 Cal.Rptr. at pp. 703–04, citing San Lorenzo Education Assn. v. Wilson (1982) 32 Cal.3d 841, 187 Cal.Rptr. 432, 654 P.2d 202.)
The cases cited by the District are inapposite. (Leek v. Washington Unified School Dist. (1981) 124 Cal.App.3d 43, 177 Cal.Rptr. 196; Link v. Antioch Unified School Dist. (1983) 142 Cal.App.3d 765, 191 Cal.Rptr. 265; San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 154 Cal.Rptr. 893, 593 P.2d 838; Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259, 177 Cal.Rptr. 888.) Those cases involved disputes which either concerned strikes by workers or payment of service fees to the union by non-union employees. In the case of strikes, a specific EERA provision, Government Code section 3543.6, subdivision (d), requires unions to participate in negotiations with school districts. And in the case of service fees, another EERA provision, Government Code section 3543.6, subdivision (b), prohibits reprisals or discrimination against employees for participation or failure to participate in union activities.
Thus in the cases cited by the District, PERB arguably had jurisdiction to resolve the disputes and so also had to be given the opportunity to resolve the jurisdictional question under Government Code section 3541.3. (See Link v. Antioch Unified School Dist., supra, 142 Cal.App.3d 765, 769, 191 Cal.Rptr. 264.) Here, in contrast, it is clear PERB has no jurisdiction to resolve the underlying dispute and it would be pointless to force CSEA to file an initial claim before that agency.
III. Under Education Code Section 44037 the School District is Obligated to Grant Paid Leaves of Absence to Non-Teaching Employees Who Serve as Grand Jurors as Well as Petit Jurors.
Since we determine the trial court rather than PERB had jurisdiction over this claim we remand to the court for consideration of the merits. One of the principal remaining issues, however, involves a pure question of statutory interpretation—whether under the terms of section 44037 “jury duty” encompasses service on a grand jury as well as a petit jury. At oral argument before this court, counsel for both parties conceded the trial court's construction of this statute would be appealed no matter which way it answered the question. Accordingly, in order to avoid a further game of judicial ping-pong between trial and appellate court we take this opportunity to interpret the statute rather than waiting until the case returns to us two or three years from now on appeal.
Education Code section 44037 requires a school district to grant a paid leave of absence to any non-teaching employee “regularly called for jury duty in the manner provided for by law.” The statute also prohibits a school district from encouraging such employees “to seek exemption from jury duty, or to directly or by indirection solicit or suggest to any employee that he seek exemption from jury duty, or to discriminate against any employee ․ because of ․ service on any jury panel.” 6
A. By Including the Broad Term “Jury Duty” Without Qualification the Legislature Intended Section 44037 to Apply to all Types of Jury Service.
Our high court has summarized the rules of statutory construction as follows:
“ ‘We begin with the fundamental rule that a court “should ascertain the intent of the Legislature so as to effectuate the purpose of the law.” In determining such intent “[t]he court turns first to the words themselves for the answer.” We are required to give effect to statutes “according to the usual, ordinary import of the language employed in framing them. If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. [A] construction making some words surplusage is to be avoided. When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.” Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.’ ” (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658–659, 147 Cal.Rptr. 359, 580 P.2d 1155, citations omitted.)
With these principles in mind we examine the statute at issue to determine its scope. CSEA argues since Education Code section 44037 includes the broad term “jury duty” without qualification, the Legislature intended the statute to apply to grand jury service as well as petit jury service. We agree.
Code of Civil Procedure section 191 provides as follows:
“§ 191. Kinds of juries
“Juries are of three kinds:
“1. Grand juries;
“2. Trial juries;
“3. Juries of inquest.” 7
It is thus clear the Legislature has recognized three types of juries—trial juries, juries of inquest and grand juries. We assume when the Legislature enacted Education Code section 44037 it was aware of the three types of juries. And by using the broad term “jury duty” in the statute, without any qualifying adjective, it intended a reference to all types of juries in defining a school district's legal obligation to grant paid leaves to employees called for jury duty.
Our conclusion is supported by the second paragraph of section 44037, which prohibits discrimination against any employee by reason of his “service on any jury panel.” The use of the words “any jury panel,” shows the Legislature, when it enacted section 44037, was aware of more than one type of jury panel. If the Legislature intended the mandate of section 44037 to be inapplicable to an employee serving on one or more types of jury panels, it could easily have included limiting language to that effect.
The State Attorney General has concluded the term “jury duty” in related Education Code section 44036 applies to all three types of juries. (59 Ops.Cal.Atty.Gen. 633.) That statute allows but does not require a school district to grant a paid leave of absence to teachers “regularly called for jury duty.” In construing the statute to include grand jury service, the Attorney General stated:
“The question arises, however, whether 13006 8 covers grand jury duty in that it refers only generally to ‘jury duty.’ Code of Civil Procedure section 191 provides that there are three kinds of juries; to wit: ‘1. Grand juries; 2. Trial juries; 3. Juries of inquest.’ Given that definition of the term, it can be inferred that the Legislature meant to include grand juries under the rubric ‘jury duty’ in section 13006.
“Moreover, there is no indication either in section 13006 or in related provisions that the references in section 13006 to jury duty are intended to be restricted to service on only one of the three types of juries. For example, section 13006.1,9 which covers jury service for non-certificated employees, speaks of ‘service on any jury panel.’
“Furthermore, there are no formal differences between absences for trial jury service and absences for grand jury service which would suggest that section 13006 is inapplicable to the case of grand jury service. Teachers are subject to being ‘regularly called’ for both trial jury duty and for grand jury duty.
“Under these circumstances, it can be deducted that if the Legislature had intended the reference to ‘jury duty’ in section 13006 to be inapplicable to the case of grand jury duty, the Legislature could and would have so indicated with appropriate limiting language. It is our conclusion, therefore, that section 13006 does cover service on a grand jury.” (Id., at pp. 634, emphasis in original.)
The Attorney General's construction of “jury duty” in section 44036 comports with our own interpretation of that exact same term in section 44037. There is nothing to suggest these words have a different meaning in the section allowing paid leave for teachers than they do in the section mandating paid leave for non-teacher employees. These provisions deal with the same topic, adjoin one another and use identical language nearly throughout. This Attorney General's opinion is not precedent on the question before this court. Nonetheless, it is entitled to serious consideration. (See In re Quinn (1973) 35 Cal.App.3d 473, 482, 110 Cal.Rptr. 881 disapproved on other grounds in State of California v. San Luis Obispo Sportsman's Assn. (1978) 22 Cal.3d 440, 149 Cal.Rptr. 482, 584 P.2d 1088; Sonoma County Bd. of Education v. Public Employment Relations Board (1980) 102 Cal.App.3d 689, 699–700, 163 Cal.Rptr. 464.)
B. Requiring School Districts to Grant Paid Leaves to Non-Teaching Employees Promotes the Public Policy Encouraging Such Service by a Representative Cross-Section of the Community.
Article 1, section 23 of the California Constitution requires one or more grand juries to be drawn and summoned in each county at least once a year. The statutes implementing the constitutional provision appear in Penal Code sections 888 to 939.9. They reveal grand juries have broad and significant duties and powers related to criminal prosecutions and local government operations.
The grand jury, in criminal matters, functions as an arm of the criminal division of the superior court. In this connection the grand jury, by indictment, initiates criminal prosecutions. (Pen.Code, § 889.) The grand jury has two significant civil functions as well: it may impeach local government officials; and in its role as “watchdog” of county government the grand jury acts on a wide range of civil policy matters.
The grand jury has the authority to investigate public officials, charge them with misconduct, and present accusations seeking the officials' removal from office. (Pen.Code, §§ 919, subd. (c); 939.8; Gov.Code, § 3060, et seq.) An accusation is delivered to the district attorney and if the official is “convicted” by a petit jury he will be removed from office. (Gov.Code, §§ 3060, 3062, 3063, 3070, 3072; see also People v. Mullin (1961) 197 Cal.App.2d 479, 17 Cal.Rptr. 516 [sheriff removed from office for wilful refusal to investigate a complaint of child molestation]; People v. Elliott (1953) 115 Cal.App.2d 410, 252 P.2d 661 [school official removed from office for conflicts of interest].)
The grand jury also investigates the operations of county governments and issues reports and recommendations based on its findings. (Pen.Code, § 925, et seq.) Once a year it must audit the accounts and records of county agencies and cities within the county. (Pen.Code, § 925.) It must also “investigate and report [to the county board of supervisors] upon the needs of all county officers in the county, including the abolition or creation of offices and the equipment for, or the methods or system of performing the duties of, the several offices.” (Pen.Code, § 928.)
The broad powers and duties conferred by the Penal and Government Codes make it clear the grand jury's actions may affect all aspects of local government.10 Accordingly, a number of commentators have urged the enactment of selection procedures which would ensure that members of the grand jury reflect the socioeconomic make-up of the particular community it serves. (See Van Dyke & Wolinsky, Quadra v. Superior Court Of The City And County Of San Francisco: A Challenge To The Composition of the San Francisco Grand Jury (1976) 27 Hastings L.J. 565, 580; Arrendodo & Tapia, El Chicano Y The Constitution: The Legacy of Hernandez v. Texas Grand Jury Discrimination (1971) 65 U.S.F.L.Rev. 129, 135; Mar, supra, 1 Pacific L.J. 36, 52; Some Aspects of the California Grand Jury System (1956) 8 Stan.L.Rev. 631, 638.)
The United States Supreme Court has held the composition of the federal grand jury must be “truly representative of the community.” (Smith v. Texas (1940) 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84.) And in People v. White (1954) 43 Cal.2d 740, 278 P.2d 9, (cert. den. White v. California (1955) 350 U.S. 875, 76 S.Ct. 120, 100 L.Ed. 774) at 43 Cal.2d p. 754, 278 P.2d 9, a petit jury case, our state's high court held “[a]ny system or method of jury selection ․ which is not designed to encompass a cross-section of the community or which seeks to favor limited social or economic classes, is not in keeping with the American tradition.” 11 (See also Adams v. Superior Court (1974) 12 Cal.3d 55, 60, 115 Cal.Rptr. 247, 524 P.2d 375.)
The Fifth Circuit Court of Appeals in Labat v. Bennett (1966) 365 F.2d 698, 723, (cert. den. Bennett v. Labat (1967) 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334) held a black defendant was denied his right to an impartial jury by the jury commissioners' policy of systematically excluding daily wage earners from grand and petit juries. The court in Labat cited Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, where the United States Supreme Court stated at page 223, 66 S.Ct. at page 987, “wage earners ․ constitute a very substantial portion of the community, a portion that cannot be intentionally and systematically excluded ․ without doing violence to the democratic nature of the jury system.”
We believe non-teaching public school employees represent a segment of the working class who, as a policy matter, should be encouraged to participate in jury service. We also believe the Legislature recognized this policy requiring both grand juries and petit juries to be drawn from a cross-section of the community when it enacted Education Code section 44037.
The California Legislature enacted a statute requiring school districts to grant paid leaves of absence for jury service and also prohibiting any discrimination against an employee on the basis of such service. The statute contains no limiting language indicating it applies only to petit jury service. The District urges this court to impose such a limitation but has given us no compelling reason to do so.12 Moreover, given the grand jury's significant influence over criminal prosecutions and the operation of local government, we are especially reluctant to adopt the District's position.
We hold Education Code section 44037 requires the District to pay Richardson for the time she served as a grand juror, assuming she was “regularly called for jury duty in the manner provided for by law.” The selection of grand jurors is governed by Penal Code section 895, et seq. The case is remanded for the trial court to determine whether Richardson was regularly called for jury duty under these statutes. The court should also determine whether there is any merit to the District's claim CSEA failed to file a grievance under the procedures set forth in the collective bargaining agreement.
Reversed and remanded for proceedings consistent with this opinion.
1. CSEA is the exclusive representative of a bargaining unit of the Long Beach Unified School District's classified employees. (See Ed.Code, §§ 45103, 45104 [classified school employees are non-certificated, i.e., non-teaching, personnel].)
2. The Petition was filed against the District as well as individual members of the District's Board of Education and the superintendent and assistant superintendent of the District.
3. During the April 4, 1983, hearing on the matter, the trial judge indicated if he was able to reach the merits of the Petition he would be inclined to grant it. However, he ruled he could not reach the merits on the ground PERB had preemptive jurisdiction.
4. The EERA speaks in terms of “meeting and negotiating” rather than collective bargaining. However, our high court has interpreted the term “meeting and negotiating” as being equivalent to the term collective bargaining. (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 855, 191 Cal.Rptr. 800, 663 P.2d 523; cf., Comment (1976) 13 San Diego L.Rev. 931, 946.)
5. The two recent cases of CSEA v. Travis Unified and CSEA v. Azusa Unified leave little doubt PERB does not have jurisdiction in this case. We note when the trial court issued its ruling these cases had not yet been decided.
6. Education Code section 44037 provides in its entirety,“§ 44037. Unlawful to encourage exemption from jury duty“The governing board of any district shall grant leave of absence to any employee, serving in a position not requiring certification qualifications, regularly called for jury duty in the manner provided for by law. The governing board shall grant such leave with pay up to the amount of the difference between the employee's regular earnings and any amount he receives as juror's fees.“It is unlawful for the governing board or personnel commission of any school district to adopt or maintain any rule, regulation, or policy which has as its purpose or effect a tendency to encourage employees to seek exemption from jury duty, or to directly or by indirection solicit or suggest to any employee that he seek exemption from jury duty, or to discriminate against any employee with respect to assignment, employment, promotion, or in any other manner because of such employee's service on any jury panel.“The board or personnel commission may, however, provide by rule that only a percentage of its staff, which percentage shall not be less than 2 percent, shall be granted such leave, with pay, at any one time.“Nothing in the foregoing provisions shall preclude the district superintendent or his agent from discussing with the affected employee the practicality of seeking exemption when acceptance would tend to materially disrupt the district's operations.”
7. Code of Civil Procedure section 192 states, “Grand juries are provided for in Title 4 (commencing with Section 888, Part 2 of the Penal Code.” Trial juries and juries of inquest are defined in Code of Civil Procedure sections 193 and 195 respectively.
8. Education Code section 13006 was reenacted without substantive change as section 44036 when the Education Code was reorganized in 1976.
9. Education Code section 13006.1 was reenacted without substantive change as section 44037 when the Education Code was reorganized in 1976.
10. One commentator has characterized the California grand jury's “watchdog” power as “expansive,” and described the policy questions considered by various grand juries as follows:“In the area of education, for example, two consecutive grand juries in Sacramento County looked into and opposed the Sacramento City Schools' plans for school desegregation. Alameda County's 1965 grand jury studied student disorders at the University of California's Berkeley campus and made a series of recommendations, calling for the University administration to take tougher action to prevent use of the campus for unlawful activities. This investigation into the conduct of a state agency was approved in advance by the Alameda County Superior Court and justified on the grounds that student disturbances on and off campus placed a burden on the county's law enforcement agencies and court system, and thus was a proper exercise of the grand jury's duty to inquire into the needs and operations of county government. Also in the field of education, grand juries have recommended that instruction in ‘Citizenship and Law Enforcement’ be included in the high school curriculum, that health and sex education classes be instituted to arrest the ‘alarming’ rate of venereal disease, that high school counselors place more emphasis on vocational education, that a teacher recruitment program be instituted, and that a study be conducted on innovations in the teaching of social sciences.“In other fields, grand juries urged that the county hospital be closed and indigents cared for thorugh contract with private hospitals, that job training programs for welfare recipients be expanded, that day care nurseries be expanded to allow welfare recipients to accept employment, that a child adoption service be established, that more effective programs be planned to treat alcoholics, that family planning services in poverty areas be improved, and that a program for purchase and development of park facilities be implemented. One grand jury urged a complete overhaul of rules, regulations, financial controls and administration of welfare programs and an immediate moratorium on ‘any additional welfare liberalization.’“A major topic for many grand juries was the rising use of drugs and narcotics among young people. One grand jury conducted a public hearing, after which it stated its intention to make the problem of illegal drug use its first order of business; other grand juries made recommendations ranging from a compulsory drug education program in the schools to the development of a central county agency for narcotics information.” (Mar, The California Grand Jury: Vestige of Aristocracy (1970) 1 Pacific L.J. 36, 62–63, fns. omitted.)
11. In Pierre v. Louisiana (1939) 306 U.S. 354, at p. 362, 59 S.Ct. 536, at p. 540, 83 L.Ed. 757, the United States Supreme Court held the same constitutional principles apply to selection of grand juries as to selection of petit juries. (Accord, People v. Newton (1970) 8 Cal.App.3d 359, 388, 87 Cal.Rptr. 394; cf., Cassell v. Texas (1950) 339 U.S. 282, 298, 70 S.Ct. 629, 637, 94 L.Ed. 839, dis. opn.)
12. True, it will cost the District more to provide paid leave for a tour of duty on the grand jury than for the average tour on a petit jury. On the other hand, while each year many are called to serve on petit juries, very, very few are called to grand jury service. Thus the fiscal impact of applying the mandate of section 44037 to grand juries should prove negligible compared to the aggregate cost of paying the far greater number called to serve on petit juries.
JOHNSON, Associate Justice.
THOMPSON, Acting P.J., and BEVERLY, J.*, concur.