IN RE: JOHN D.

Reset A A Font size: Print

Court of Appeal, First District, Division 3, California.

IN RE: JOHN D., a Person Coming Under the Juvenile Court Law. Alan CAMPBELL, Chief Probation Officer, etc., Plaintiff and Respondent, v. JOHN D., Defendant and Appellant.

Civ. 52475.

Decided: November 17, 1981

Daniel J. Russo, Russo & Weintraub, Vallejo, for defendant and appellant. Robert D. Curiel and Charles P. Selden, Deputy County Counsel, County of Humboldt, Eureka, for plaintiff and respondent.

In December of 1978 appellant John D., a minor, was found insane at the time he committed a violation of Penal Code section 187 (murder).   In January of 1979 John was placed in Napa State Hospital pursuant to Welfare and Institutions Code section 702.3.   During the trial and thereafter the County of Humboldt incurred expenses for appellant's maintenance and care at the county juvenile hall and at Napa State Hospital.   The cost of his defense was also borne by the county.   Investigation revealed that appellant's parents were not financially able to reimburse the county for these expenses.   It appeared, however, that appellant himself was the beneficiary of a trust fund which resulted from a settlement of a personal injury action in which he had been the plaintiff.   The record does not disclose the amount of the trust fund.

A hearing was held to determine the minor's ability to pay for the cost of his defense and his maintenance.   The trial court concluded that it had no discretion to determine the amount to be charged the minor or his estate for the expenses connected with his defense and support and maintenance.   The court then ordered that the county attach the minor's trust fund to meet those costs, which were $58,125.17.

Appellant contends that the trial court erred when it relied on an unpublished Court of Appeal opinion to decide that it could not exercise discretion, and that Welfare and Institutions Code sections 903–906 do not deprive a trial court of discretion in its determination of what amount must be paid by a minor's estate.

The minor's obligation to the county for cost of support is set forth in Welfare and Institutions Code section 903 which provides:  “The father, mother, spouse, or other person liable for the support of a minor person, the estates of such persons, and the estate of such minor person, shall be liable for the cost of his care, support, and maintenance in any county institution in which he is placed, detained, or committed pursuant to the order of the juvenile court, or for the cost to the county in which the juvenile court making the order is located, of his care, support, and maintenance in any other place in which he is placed, detained, or committed pursuant to the order of the juvenile court.   The liability of such persons (in this article called relatives) and estates shall be a joint and several liability.”   Section 903.1 sets forth the minor's obligation to reimburse the county for legal expenses:  “The father, mother, spouse, or other person liable for the support of a minor person, the estates of such persons and the estate of such minor person, shall be liable for the cost to the county of legal services rendered to the minor by the public defender pursuant to the order of the juvenile court, or for the cost to the county for the legal services rendered to the minor by private attorney appointed pursuant to the order of the juvenile court.   The liability of such persons (in this article called relatives) and estates shall be a joint and several liability.”

On December 8, 1978, the Court of Appeal for the Third Appellate District filed its opinion In re Beatrice T. (3 Civ. 17314).   The opinion, which was certified for publication and appeared in the Official Advance Sheets at 87 Cal.App.3d 151, held that section 903 imposed a mandatory duty upon the county to collect the type of costs involved here from the estate of the minor, and that there is no power or discretion to do otherwise.   In appellant's case, a hearing was held on the county's motion for reimbursement on January 28, 1980, at which counsel for respondent county cited In re Beatrice T. in support of its position.   On February 27, 1980, the court below issued its ruling granting the county's motion for reimbursement from appellant's trust fund to the extent that funds were available therefrom.   It appears that the court and the attorneys were unaware that on February 14, 1979, a year earlier, the Supreme Court had denied hearing in In re Beatrice T. but had ordered that the opinion not be published in the official reports.

Appellant cites California Rules of Court, rule 977, prohibiting the citing of unpublished opinions of the Court of Appeal, and contends that the trial court's reliance on that opinion denied him a hearing on the merits of the county's motion.1

 There is no question that the citing of unpublished Court of Appeal opinions is contrary to rule 977.   Although the Court of Appeal has certified its opinion for publication pursuant to the criteria set forth in rule 976, the Supreme Court may order that the opinion not be published in the official reports under its authority set forth in California Constitution, article VI, section 14.2  The opinion then becomes unpublished and subject to the no citation provision of rule 977.   The questionable practice of the Supreme Court in ordering Court of Appeal opinions unpublished without explanation has been criticized.3  The instant case is an illustration of one of the mischiefs that flow from the depublication practice.   Once a Court of Appeal opinion has been certified for publication by the panel deciding the case, it is printed in the Official Advance Sheets and also finds its way into the bound volumes of the unofficial California Reporter even if ordered unpublished by the Supreme Court.   It may well not be the best of practice when lawyers and judges fail to discover that what appears to be a published opinion is in fact an unpublished opinion.   However, such an oversight by busy trial lawyers and trial judges is understandable.   The depublication practice is a trap for the harried trial judge.

In the words of Omar Khayyam in the Rubaiyat:  “The moving finger writes;  and having writ, moves on, nor all thy Piety or wit shall lure back to cancel half a line, nor all thy tears wash out a word of it.”   Once a Court of Appeal opinion is certified for publication, the Supreme Court's attempt to “CANCEL” ALL ITS LINES AND “WASH OUT” ALL ITs words by ordering it depublished can never be wholly successful.

 We now consider what effect, if any, on the decision of the trial court flows from its inadvertent yet erroneous reliance upon a depublished Court of Appeal opinion.   We find no sanction in the rules or elsewhere suggesting that the citing of an unpublished opinion somehow vitiates a judgment made in reliance thereon.   Appellant contends that the court's error denied him a fair hearing.   We fail to find any logic in this argument.   The question, as we see it, simply put, is whether the trial court's ruling was correct, and not whether the authority upon which the court relied was proper.  (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10.)   We conclude that if the trial court's ruling was correct, no prejudice resulted from its error.  (See Estate of Cooper (1970) 11 Cal.App.3d 1114, 1121, 90 Cal.Rptr. 283.)

 Therefore, we now consider whether the trial court has discretion in ordering reimbursement for legal services and cost of maintenance of a minor under the provisions of Welfare and Institutions Code.   The statutes are clear and unambiguous.   They state that the estate of a minor “shall be liable” for the cost to the county for the cost of legal services (§ 903.1) and the cost of care, support and maintenance (§ 903).  Welfare and Institutions Code section 906 establishes the duty upon the county to collect for the minor's support and legal expenses.   The statute provides:  “The county officer or officers designated by the board of supervisors of the county shall collect all costs and charges mentioned in Sections 902, 903.1 and 903.2 or established by order of the juvenile court and may take such action in the name of the county as is necessary to effect their collection within or without the state.   The officer shall promptly notify any person liable for such costs and charges in writing that the law provides that if the person liable believes that he is unable to pay such costs and charges such person may claim such inability upon appropriate forms which shall be furnished by the officer.”  (Emphasis added.)  “Shall collect” places upon the county an unequivocal mandatory duty.  (Gov. Code, § 14;  see Morris v. County of Marin (1977) 18 Cal.3d 901 at pp. 906–910, 136 Cal.Rptr. 251, 559 P.2d 606.)   This conclusion is reinforced by the language of section 905 giving the county the authority to “reduce, cancel, or remit the amount to be paid ․ on satisfactory proof that the estate ․ is unable to pay the cost of such ․ care ․”  (Emphasis added.)   The statutory scheme makes clear that the court and the county's only inquiry is the financial ability of the minor to pay the designated costs.

Section 905 provides for a determination of inability of the minor's estate to reimburse the county for the cost of support.  Section 906 orders that the county “shall collect all costs and charges” incurred in behalf of the minor.   The court's only tasks are to determine the amount of those costs and to ascertain if the minor's estate is “financially able to pay” those costs.   The mandatory language of the code sections makes it clear and unambiguous that the court is without discretion to order some amount less than the full amount of those costs unless the minor is unable to pay.

 Appellant does not contend that the minor's estate is financially unable to pay the costs involved.   Instead he urges that the court should be able to weigh the desirability of “replenishing the county treasury” against the minor's being deprived of funds upon his “release from confinement to meet his most basic emotional, mental, and physical needs.”   In support of that theory, appellant cites Welfare and Institutions Code section 202 which provides:  “(a) The purpose of this chapter is to secure for each minor under the jurisdiction of the juvenile court such care and guidance, preferably in his own home, as will serve the spiritual, emotional, mental, and physical welfare of the minor and the best interests of the state;  to protect the public from criminal conduct by minors;  to impose on the minor a sense of responsibility for his own acts;  to preserve and strengthen the minor's family ties whenever possible, removing him from the custody of his parents only when necessary for his welfare or for the safety and protection of the public;  and, when the minor is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents.   This chapter shall be liberally construed to carry out these purposes.”   He contends that the mandatory application of section 906 goes against the whole purpose of the juvenile court law as outlined in section 202.   We disagree.   We see nothing in section 202 which remotely suggests a legislative intent to modify the clear mandatory provisions of Welfare and Institutions Code sections 903–906.   That the sections are not contradictory is patently clear.  Section 202 is designed to guide the trial court and juvenile authorities in the care and treatment of offending minors.   The economic security of such minors is not mentioned.   Furthermore, even if we were to read some concern for the minor's economic welfare into section 202, the specific provisions of sections 903–906 would take precedence over general language of this “legislative purpose” statute.

It is apparent that in enacting sections 903–906, the Legislature clearly intended that people responsible for a minor, including the minor himself, are required to reimburse society for the costs of his legal representation and his support and maintenance to the extent they are able to pay.   The Legislature has concluded that these societal needs clearly are greater than the needs of the minor to have a financial cushion on his release from custody.   We do not read section 202 as somehow suggesting otherwise.   We conclude, therefore, that although the trial court erroneously relied upon a depublished Court of Appeal opinion, it correctly determined that these statutes are mandatory, and that it was without discretion in this matter except as to appellant's financial ability to pay.

Judgment is affirmed.

FOOTNOTES

1.   California Rules of Court, rule 977 states:  “An opinion of a Court of Appeal or of an appellate department of a superior court that is not published in the Official Reports shall not be cited by a court or by a party in any other action or proceeding except when the opinion is relevant under the doctrines of the law of the case, res judicata or collateral estoppel, or in a criminal action or proceeding involving the same defendant or a disciplinary action or proceeding involving the same respondent.”

2.   Article VI, section 14, provides in relevant part that “[t]he Legislature shall provide for the prompt publication of such opinions of the ․ courts of appeal as the Supreme Court deems appropriate ․”

3.   (See Witkin, Manual on Appellate Court Opinions (1977) § 22, pp. 35–36;  Report of the Chief Justice's Advisory Committee for an Effective Publication Rule, June 1, 1979, pp. 24–25;  Comment, Decertification of Appellate Opinions (1977) 50 So.Cal.L.Rev. 1181.)

SCOTT, Acting Presiding Justice.

BARRY-DEAL and ANELLO *, JJ., concur.