Robert D. ZUMWALT, County Clerk, etc., Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent. William PIERCE, Executive Officer of the Superior Court, etc., Real Party in Interest.
On May 6, 1987, the Superior Court of San Diego County (the Court) adopted a rule pursuant to Government Code section 69898 1 transferring certain powers, duties and responsibilities from Robert D. Zumwalt, the San Diego County Clerk (the Clerk), to the Office of the Superior Court Executive Officer (the Executive Officer).2 The powers, duties and responsibilities transferred are with respect to the employment and supervision of 121 employees of the Clerk's office. In this proceeding the Clerk seeks to restrain the County of San Diego (the County) from transferring these employees and to compel the court to rescind this local rule.3 At the direction of the Supreme Court we issued an alternative writ. We discharge the alternative writ and deny the petition.
The issue presented is the most recent in the ongoing turf war over who will control the superior court clerks: the county clerk or the superior court. Earlier cases have extensively discussed the administrative problems associated with superior courts' lack of control over courtroom clerks and accordingly there is no need for us to do so here. (See St. John v. Superior Court (1978) 87 Cal.App.3d 30, 40–42, 150 Cal.Rptr. 697; see also Price v. Superior Court (1986) 186 Cal.App.3d 156, 171, 230 Cal.Rptr. 442.) Price, St. John and Service Employees Int'l Union v. Superior Court (1984) 161 Cal.App.3d 1005, 208 Cal.Rptr. 48 have also considered either the constitutionality of section 69898 or the propriety of a local rule similar to the one in question here. Each has either found section 69898 to be constitutional or found the local rule to represent a proper exercise of authority delegated to the superior court by section 69898. (Price, 186 Cal.App.3d at p. 174, 230 Cal.Rptr. 442; Service Employees Internat. Union, 161 Cal.App.3d at p. 1008, 208 Cal.Rptr. 48; and St. John, 87 Cal.App.3d at p. 39, 150 Cal.Rptr. 697.) We reach the same result. We do so, however, through a different, less constrained analytic approach, interpreting article VI, section 4 4 as the source of the Legislature's power to lawfully enact section 69898.
Since the original California Constitution was adopted in 1849, article VI, section 4 and its predecessor provisions have provided that the county clerk is ex officio clerk of the superior court. In 1966 article VI of the California Constitution was substantially amended. As a result, article VI, section 4 now provides both that the county clerk is ex officio clerk of the superior court and that the Legislature shall provide for the officers and employees of each superior court. We interpret article VI, section 4 as giving the Legislature a dual track through which it may enact powers and duties to be performed either by the clerk or by an officer or employee of the superior court. Although discussed in greater detail in the opinion which follows, it is primarily for this reason we reject the Clerk's several arguments challenging the constitutional validity of section 69898 and the local rule.
The Clerk claims subdivisions (c) and (d) of section 69898 are unconstitutional because of two provisions of the California Constitution—article I, section 26 and article VI, section 4. Article I, section 26 states the provisions of the California Constitution are mandatory and prohibitory. The Clerk relies on the portion of article VI, section 4 which provides the county clerk is “ex officio clerk of the superior court.” 5
The Clerk says the combined effect of these provisions mandates the county clerk and no other person can serve in the capacity of clerk of the superior court. The Clerk further asserts subdivision (d) is unconstitutional because it allows a superior court to relieve a clerk of his duties and assign them to an executive officer contrary to those same constitutional provisions.6 We conclude the Clerk's position is contrary to the principles governing constitutional and statutory interpretation.
Courts must construe legislation to be constitutional whenever possible. (See Braxton v. Municipal Court (1973) 10 Cal.3d 138, 145, 109 Cal.Rptr. 897, 514 P.2d 697.) A statute must be upheld unless its unconstitutionality “clearly, positively, and unmistakably appears.” (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484, 171 P.2d 21). A constitutional provision must be construed to give effect to the intentions of the authors. (See Bakkenson v. Superior Court (1925) 197 Cal. 504, 510, 511, 241 P. 874.) A determination of these intentions is accomplished by examining the whole and by harmonizing the parts. (See Serrano v. Priest (1971) 5 Cal.3d 584, 596, 96 Cal.Rptr. 601, 487 P.2d 1241; Bakkenson, supra, 197 Cal. at p. 511, 241 P. 874.) A court should also liberally interpret a constitutional provision and construe it to meet changing conditions and growing needs of the people. (Los Angeles Met. Transit Authority v. Public Util. Com. (1963) 59 Cal.2d 863, 869, 31 Cal.Rptr. 463, 382 P.2d 583; Miro v. Superior Court (1970) 5 Cal.App.3d 87, 98, 84 Cal.Rptr. 874). Thus in interpreting a constitutional provision a court must look not only to the specific language of the provision, but to its general intent, scope and purpose. (See Bakkenson, supra, 197 Cal. at pp. 509–511, 241 P. 874.)
Section 69898, subdivision (d) is constitutional.
Article VI, section 7 of the original California Constitution of 1849 is the genesis of article VI, section 4. Section 7 provided in part that county clerks would be clerks of the courts of general jurisdiction for their respective counties. The provision was carried over into California's second constitution adopted in 1879. We believe the county clerk was designated as ex officio clerk of the superior court to assist the courts in their early stages of development since absent that provision there would have been an administrative hiatus—a court structure without essential apparatus.
Over the ensuing years California's population substantially increased and the court system expanded accordingly. During the same time the Constitution of 1879 was amended over 300 times and grew to a cumbersome, unwieldy document of 80,000 words. (See Address Revision of the California Constitution, prepared for Members of the Constitution Revision Commission by Richard Patsey, Special Council [sic], Apr. 18, 1966, pp. 2, 4 [available in State Archives Chaptered Bill File for ch. 139 of 1966 1st Ex. Session]; see also Proposed Revision of the California Constitution, California Constitution Revision Commission, pp. 7–13, February 1966 [discussing history of the California Constitution] [hereinafter Proposed Revision ].) In its 1963 session, the Legislature established the Constitution Revision Commission (the Commission) to submit to the Legislature recommendations for the revision of the Constitution. (Proposed Revision at p. 12.)
The Commission's proposed revision did not include any provision on clerks of the superior court. (See Proposed Revision.) Rather, the Commission recommended deleting the provision that the county clerk is ex officio clerk of the superior court from the Constitution. The Commission further recommended the Legislature consider transferring the provision to the statutes. (Id. at pp. 102, 104.) Instead, the Assembly's Committee on Constitutional Amendments reinstated the provision in the proposed Constitutional revision. (See Assem. J. (1966 1st Ex. Session) p. 704, amend. 9.) At the same time the Committee also added a provision to article VI that “[t]he Legislature shall prescribe the number of judges and provide for the officers and employees of each superior court.” (Id. at p. 704, amend. 11.) In November of 1966 the California electorate adopted substantial revisions to the Constitution including article VI, section 4 providing both that the county clerk is ex officio clerk of the superior court and that the Legislature shall provide for the officers and employees of each superior court.
It is clear that the amended provisions to article VI were proposed by the Legislature and adopted by the electorate to both simplify and modernize the Constitution and to provide greater flexibility in the administration of the superior courts necessitated by the complexities of the judicial system. Simply stated, the court administrative needs were different in 1966 than they were in 1849. The current version of article VI, section 4 gives the Legislature an option of enacting powers and duties to be performed either by the clerk or by other officers and employees of the court as necessary for the efficient administration of justice.
Our interpretation is supported by the fact that the Constitution has never set forth any duties and responsibilities for the county clerk as clerk of the superior court. Rather, since 1849 the framers of the Constitution and the people have left to the Legislature the responsibility of establishing those duties and responsibilities. Over the years the Legislature enacted legislation giving certain duties to the county clerk as clerk of the superior court. (See e.g., section 69841 et seq.) What the Legislature has given, the Legislature can take away. The 1966 constitutional revision continued the Legislature's long standing power to determine what duties and responsibilities rest with the clerk. It also authorized the Legislature to provide for necessary court employees and officers and the further power to allocate duties and responsibilities among those court employees and officers, including the clerk.
In 1971 the Legislature enacted section 69898 to provide for an executive officer as an employee of the superior court. By 1976, however, the Legislature appreciated the potential conflict caused by the overlap of responsibilities between the executive officers and the county clerks and added subdivisions (c) and (d) to section 69898 giving the court the ability to allocate duties and responsibilities between the two officers. (See e.g., Assem. Office of Research, 3d reading analysis of Assem. Bill No. 4071 (May 21, 1976); Bill Digest of Assem. Bill No. 4071 of the California Assembly Committee on Judiciary (May 17, 1976). See generally State Archives Chaptered Bill Files for ch. 1353 of 1976 Reg. Session.) By enacting subdivision (d) the Legislature created the means by which county clerks could be relieved of duties and responsibilities which had been created under earlier legislation.
According to the Clerk, even though no duties are specified in the Constitution there are certain basic duties that must be performed by the county clerk to carry out the constitutional mandate of article VI, section 4 that the county clerk is clerk of the superior court. The duties the Clerk views as being constitutionally required are those duties necessary to maintain a court of record.7
Under article VI, section 1 the superior court is a court of record. It is the Clerk's position the framers of the Constitution and the people have mandated that the county clerk is clerk of the superior court because the court's record must be independently maintained. The Clerk reasons independent maintenance of the record is necessary because of the tremendous power that rests with superior court judges. By providing that the county clerk is clerk of the superior court, a check is placed on the power of the superior court judges and the court's record is immunized from tampering by the judiciary. The Clerk implicitly argues judges cannot be trusted to maintain an honest record of court proceedings.
Putting aside our intellectual and emotional response to the Clerk's unsupported premise, there is nothing in the Constitution requiring the Legislature to give any record keeping or other duties to the clerk. The Constitution gives the Legislature the ability to provide for additional officers and employees of the court and to designate duties to be performed by those employees and officers. When viewed as a whole, article VI, section 4 provides a reasonable scheme to deal with the effect of increased population in California on the courts of this state.
The framers of the constitution intended to provide a clerk for the court. They did not intend to provide a court for the clerk. The clerk has no vested right to maintain the court records. By section 69898, subdivision (d), the Legislature allows the superior court to specify which legislatively created duties and responsibilities are to be performed by the executive officer rather than the county clerk. Section 69898, subdivision (d) is consistent with article VI, section 4 by effectuating the general intent of that provision to provide the necessary superior court staffing for the effective administration of justice.
Section 69898, subdivision (c) is constitutional.
Under subdivision (c) the executive officer is not made clerk of the superior court but is given the authority of a clerk of the court. (See fn. 1, supra.) Deputy clerks exercise authority of the clerk on an ongoing basis. Subdivision (c) simply gives an executive officer similar authority to enable him to carry out those statutory duties and responsibilities that may be transferred to him pursuant to subdivision (d).
The Clerk argues that as recently as 1982 the people demonstrated their desire that the county clerk be clerk of the superior court. In the November 1982 election, the voters rejected Proposition 10 which would have amended article VI, section 5 to allow the Legislature to authorize a county to unify its municipal and superior courts. Under the proposed amendment the Legislature would have provided for a clerk of the superior court in a unified county. It is the Clerk's position the people have reaffirmed that the county clerk is ex officio clerk of the superior court and implicitly that only the county clerk as superior court clerk can perform the court's ministerial record keeping duties. The Clerk reads too much into the rejection of Proposition 10. The people rejected a unified court system. They did not in any way affect the Legislature's already existing power to enact legislation whereby certain ministerial functions of the court may be performed by the executive officer rather than the county clerk.
The Clerk further contends section 69898, subdivision (d) is an unlawful delegation of legislative powers to the judiciary. That is, the Legislature violated the separation of powers principle when it delegated to the superior court the authority to specify what duties and responsibilities will be exercised by the executive officer.
The Constitution provides each branch of the government, legislative, executive, and judicial, may not exercise the powers of the other except as permitted by the Constitution. (Cal. Const. Art. III, § 3.) Here, the Constitution itself permits the Legislature to delegate to the superior court the function of providing for the duties of an executive officer. Article VI, section 4 provides the Legislature shall “prescribe the number of judges and provide for the officers and employees of each superior court.” (Italics added.) Where the term “prescribe” is used, courts have held the Legislature must perform the designated function. (See e.g., People v. Johnson (1892) 95 Cal. 471, 31 P. 611.) However, where the term “provide” is used, the Legislature may delegate the designated function. (See County of Madera v. Superior Court (1974) 39 Cal.App.3d 665, 669–670, 114 Cal.Rptr. 283. See also Proposed Revision at p. 82.) Under article VI, section 4, therefore, the Legislature may delegate to the superior courts the function of providing for the duties of their executive officers. Being constitutionally permitted, such delegation cannot constitute an unlawful delegation of legislative powers to the judiciary.8
Moreover, even if the Constitution did not specifically permit the Legislature to delegate the function to the superior courts, such delegation is not necessarily unconstitutional. The doctrine of separation of powers is not interpreted to prohibit one branch from exercising in some degree the functions of another branch.
“The separation of powers principle and the constitutional distribution of functions among the three branches of government seek to prevent the combination of basic or fundamental powers of government in one group or branch; they do not demand the rigid classification of incidental activities of government. (Parker v. Riley (1941) 18 Cal.2d 83, 89–90 [113 P.2d 873] [citations].) Although a technique or method of procedure may be traditionally associated with a particular branch of the government, these principles do not mean that this technique or method of procedure cannot incidentally be used by another branch. (Id. at p. 90 [113 P.2d 873].) Each branch must in some degree exercise some of the functions of others; it is only when one branch exercises the complete power constitutionally delegated to another that the action violates the constitutional distribution of powers. [Citation.].” (Emphasis in original.) (Way v. Superior Court (1977) 74 Cal.App.3d 165, 178, 141 Cal.Rptr. 383.)
Section 69898, subdivision (d) allows flexibility at the local level to allocate duties and responsibilities between the superior court clerks and the courts' executive officers. The flexibility is necessary to meet the needs of the individual courts. If all such delegations of authority were unconstitutional the effective functioning of government would be severely impacted. The delegation here is reasonable and does not violate the separation of powers principle.
The Clerk additionally argues that with the implementation of the local rule he will no longer have the personnel to carry out his ministerial duties of maintaining the court of record. For example, there would be no deputy county clerk available to keep records of the court's sessions. There could be no courtroom filings. Nor would the seal be available for courtroom certification of the record. These concerns are groundless. With the transfer of the duties and responsibilities, it will not be necessary for the personnel remaining with the Clerk to perform these functions. The courtroom clerks under the direction of the Executive Officer will carry them out.
The Clerk implies the transfer of record keeping duties from the Clerk to the Executive Officer may in some way affect the Court's ability to function as a court of record and its ability to be accorded full faith and credit under the United States Constitution, article IV, section 1. We are not aware of, nor has the Clerk pointed out, how the transfer of duties and responsibilities would adversely affect full faith and credit being accorded the records of the Court. The records will still be maintained. The only change is certain duties and responsibilities connected with courtroom personnel will now rest with the Executive Officer rather than the Clerk.
The Clerk argues the local rule is an abuse of judicial power because it deprives him of the “perquisites” of his constitutional office. The Clerk appears to argue the superior court abuses its discretion by taking personnel from his office.
The superior court rule transfers duties and responsibilities of the county clerk and not personnel. Although the transfer will ultimately result in increased personnel for the Court and decreased personnel for the Clerk, such staffing changes are not an abuse of judicial power. Where the duties and responsibilities are properly transferred, as we have found they are in this case, staffing adjustments must follow. Responsible government requires the positions in the Clerk's office to be decreased once the duties and responsibilities are transferred.9
The Clerk relies on Houston v. Williams, supra, 13 Cal. 24, to support his position. Houston stated the Court could not without “abuse of its powers, take ․ from the Clerk, the perquisites of his office for copies of opinions, and papers on file, ․” (Id. at p. 28.) At the time Houston was decided the clerk of the supreme court, the clerk in question, was compensated by fees he received for filing papers and making copies. (California Statutes of 1855, Chapter LXXIV, § 2.) The Supreme Court stated the court could not deprive him of those legislatively created perquisites of his office without abusing its power. There is nothing in Houston that supports the Clerk's position his present staffing level is somehow a “perquisite” of his office.
We hereby discuss, and reject, the Clerk's remaining contentions.
The Clerk, without authority, asserts the Legislature's authority to enact section 69898 rests in article VI, section 22, providing for the appointment of officers to perform subordinate judicial duties. Therefore, the Clerk reasons, article I, section 26 prohibits the Legislature from enacting legislation whereby an executive officer can perform other than judicial duties (i.e., ministerial duties). Legislative history, however, reflects the Legislature considered article VI, section 4 rather than article VI, section 22 to be its authority for enacting section 69898. (See e.g., Rpt. on Enrolled Assem. Bill 4071, Cal.Legis.Counsel (Sept. 20, 1976), County Clerks, at pp. 2–3 [discussing article VI, section 4 as the source of the Legislature's power to delegate to the superior court the function of providing for the executive officer's duties].) Under article VI, section 4, the Legislature may provide for “officers and employees” of the superior court without reference to the nature of the officers' duties.
Section 69898 does not violate article VI, section 6. Article VI, section 6 which requires the Judicial Council to adopt rules for court administration, practice and procedure, does not limit rule-making authority to the Judicial Council. On the contrary, that section limits the Council's rule-making authority to that “not inconsistent with statute.” It contemplates the Legislature's authority to enact laws such as section 69898.
The Clerk also argues section 69898, subdivisions (b) and (c) when read together are an unlawful delegation of legislative power because subdivision (b) permits a court to provide for an executive officer either under section 69898 or under a specific legislative authorization for an executive officer if the Legislature has enacted such authorization (see e.g., § 69894.1 for Los Angeles County). Allowing the court to elect which authorization to use, according to the Clerk, is an unlawful delegation of the Legislature's power to appoint subordinate judicial officers. If both section 69898 and specific legislation allowing the appointment of an executive officer are constitutional, as we believe they are, giving the court a choice of two constitutional provision to proceed under cannot render them unconstitutional.10
The writ is discharged and the petition denied.11
1. All statutory references are to the Government Code unless otherwise specified. Section 69898 provides in pertinent part:“(a) Any superior court may appoint an executive officer who shall ․ exercise such administrative powers and perform such other duties as may be required of him by the court․“․“(b) Any superior court for which a specific authorization to have an executive or administrative officer has been enacted by the Legislature may elect to proceed under its specific authorization or under this section, but not under both.“(c) In every superior court having an executive or administrative officer ․ that officer has the authority of a clerk of the superior court.“(d) 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 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.”
2. The Clerk mischaracterizes the local rule here when he says it transfers personnel. Instead the rule transfers “the power, duties and responsibilities of the county clerk with respect to the employment and supervision” of certain “positions and classifications whose principal activities are to serve the courts in connection with judicial actions and proceedings.” (See fn. 3, infra.)
3. Pursuant to the agreement of counsel we decide this case on the basis of a revised rule adopted on October 14, 1987, which states in pertinent part:“Pursuant to the authority contained in Government Code section 69898, the court hereby transfers from the County Clerk to the Superior Court Executive Officer, under the direction of the Presiding Judge, the powers, duties and responsibilities of the County Clerk with respect to the employment and supervision of the following positions and classifications whose principle activities are to serve the courts in connection with judicial actions and proceedings.“The court pursuant to this local rule hereby specifies the following powers, duties and responsibilities for such transfer:“․“Pursuant to the authority contained in Government Code section 69898, subsection [sic] (d), the County Clerk is relieved of any obligation imposed on the County Clerk by law with respect to the foregoing powers, duties and responsibilities, to the extent this rule imposes on the Executive Officer of the Superior Court the same powers, duties and responsibilities.” (San Diego Superior Court Rules, rule 1.4(r) [the omitted portion of the rule specifies powers, duties and responsibilities of eleven affected positions].)
4. Article VI, section 4 provides in pertinent part:“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․ [¶ ] The county clerk is ex officio clerk of the superior court in the county.”
5. The term “ex officio” means the county clerk is clerk of the superior court by virtue of holding the office of county clerk (See Black's Law Dict. (5th ed.1979) at p. 516.)
6. The Clerk cites five cases in support of his argument. Of those cases three involved specific prohibitory language and are inapplicable. (McDonald v. Patterson (1880) 54 Cal. 245, 246–248 [prohibited letting public work projects without an estimate]; Ewing v. Oroville Mining Co. (1880) 56 Cal. 649, 655–656 [prohibited issuance of stock except in certain circumstances]; In the Matter of Maguire, (1881) 57 Cal. 604, 605 [prohibited sex discrimination in the pursuit of business]. Another case involved mandatory language that a proposed amendment to the Constitution be set forth in full when entered in the journals of the Senate and Assembly. The court interpreted the language as prohibiting disobedience of the provision. (Oakland Paving Co. v. Hilton (1886) 69 Cal. 479, 512, 11 P. 3.) In the fifth case, Unger v. Superior Court (1980) 102 Cal.App.3d 681, 162 Cal.Rptr. 611, the court considered article II, section 6, which require certain elections to be nonpartisan. The court found article II, section 6, prohibited a political party from endorsing or opposing a candidate in one such election. (Id. at p. 686, 162 Cal.Rptr. 611.) Simply put, to have nonpartisan elections you cannot have political party participation. None of these cases require us to reach the result urged by the Clerk.
7. The Clerk contends the constitutionally required duties of the clerk are those ministerial duties necessary to maintain the court record which “tradition, logic and judicial decision” have recognized. Implicit in the Clerk's argument is the premise that only the county clerk as superior court clerk can perform these ministerial duties. The Clerk relies on Houston v. Williams (1859) 13 Cal. 24. Houston does not require that the county clerk perform the ministerial duties of record keeping. To the contrary, Houston emphasizes the necessity of the court exercising control over its records. The only limitations Houston placed on court control of its records was the court could not authorize the destruction or mutilation of its records. (Ibid at 28.)
8. It is arguable that even absent section 69898 the court could appoint an executive officer and assign duties previously performed by the county clerk under the court's inherent power to conduct the business of the court. (See Price v. Superior Court, supra, 186 Cal.App.3d 156 at pp. 166–173, 230 Cal.Rptr. 442.)
9. The Clerk specifically challenges the transfer of the duties and responsibilities of the mail clerk driver. He argues the mail clerk driver distributes mail to several county departments and the municipal court as well as the superior court. Therefore, he argues the mail clerk is properly a county clerk position rather than a superior court position. We note, however, the rule appears to only transfer the duties and responsibilities as to the handling of superior court mail. We must presume that proper personnel adjustments can be made to meet the Clerk's need for mail handling.
10. We do not address the arguments raised by the Orange County Clerk on whether the rule is authorized by section 69898. An appellate court will consider only questions raised by the appealing parties. “ ‘Amicus curiae must accept the issues made and propositions argued by the appealing parties, and any additional questions presented in a brief filed by an amicus curiae will not be considered. [Citations].’ ” (Younger v. State of California (1982) 137 Cal.App.3d 806, 813–814, 187 Cal.Rptr. 310, citing Pratt v. Coast Trucking, Inc. (1964) 228 Cal.App.2d 139, 143, 39 Cal.Rptr. 332.)
11. We do not decide the question of the Clerk's right to reasonable attorney's fees for legal services rendered in this matter. Should the Board of Supervisors refuse to allocate funds to pay the fees, we presume the Clerk will challenge that determination in the trial court. Consequently, our opinion should not be construed as expressing any view on this issue.
WIENER, Acting Presiding Justice.
WORK and BUTLER, JJ., concur.