Bradley v. Lacy

• Decision Date: 25 March 1997
• Docket Number: No. C022867,C022867
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 2180, 97 Daily Journal D.A.R. 3935 William S. BRADLEY, Plaintiff and Appellant, v. Gary L. LACY, as District Attorney, etc., Defendant and Respondent.

Page 919

61 Cal.Rptr.2d 919

53 Cal.App.4th 883, 97 Cal. Daily Op. Serv. 2180,

97 Daily Journal D.A.R. 3935

William S. BRADLEY, Plaintiff and Appellant, v. Gary L. LACY, as District Attorney, etc., Defendant and Respondent.

No. C022867.

Court of Appeal, Third District, California.

March 25, 1997.

Review Denied June 25, 1997.

Richard D. Birdsall, Sacramento, Sinclair, Wilson, Sinclair & Bedore and Lawrence T. Ring, Roseville, for Plaintiff and Appellant.

Law Offices of Julia P. Gibbs, Julia P. Gibbs and James B. Beal, El Dorado Hills, and Steven R. Phipps, Trinidad, Amici Curiae for Plaintiff and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Michael J. Weinberger, Supervising Deputy Attorney General, and W. Scott Thorpe, Supervising Deputy Attorney General, for Defendant and Respondent.

PUGLIA, Presiding Justice.

I

Government Code section 3063 specifies the procedure to be followed after the grand jury has found an accusation: "The district attorney shall have a copy of the accusation served upon the defendant, and by notice in writing shall require the accused to appear before the superior court of the county, at a time stated in the notice, and answer the accusation. Appearance shall not be required in less than 10 days from the service of the notice. After service, the original accusation shall be filed with the clerk of the court."

The question in this appeal is whether Government Code section 3063 imposes mandatory duties on the district attorney or whether, instead, the district attorney has discretion to refuse to comply and thereby effectively abort the prosecution of an accusation found by the grand jury against a public officer. The superior court denied a petition for writ of mandate to compel the district attorney to comply with Government Code section 3063. We conclude the district attorney's duty to comply with Government Code section 3063, thus commencing prosecution of an accusation found by the grand jury, is mandatory. Accordingly, we reverse.

On August 25, 1995, plaintiff, a resident of El Dorado County, petitioned the superior court for a writ of mandate to compel the District Attorney of El Dorado County (defendant) to perform the duties with which he is charged in Government Code section 3063 (further statutory references to sections of an undesignated code are to the Government Code). The petition alleges that on July 18, 1995, the El Dorado County Grand Jury "conducted an investigation and filed with the El Dorado County Superior Court a report identifying an accusation for the removal of an elected official from office." The accusation was delivered to defendant but defendant "has ... ignored [it]." The petition seeks a writ commanding defendant "to serve and prosecute the accusation" and requests attorney fees pursuant to Code of Civil Procedure section 1021.5. ¹

Defendant filed opposition to the petition, acknowledging his receipt of the accusation and refusal to prosecute, and contending he has discretion to decline to prosecute. Defendant does not contend the accusation is void on its face.

In its decision denying the petition, the superior court concluded the Legislature did not intend "to vest the District Attorney with discretion to refuse to file a legally sufficient accusation, ..." Nevertheless, the court reasoned it "is without authority to require the district attorney to proceed with the prosecution[,]" and therefore compelling him to commence the prosecution would be an " 'idle act'."

II

"The California grand jury has three basic functions: to weigh criminal charges and determine whether indictments should be returned [Pen.Code,] § 917); to weigh allegations of misconduct against public officials and determine whether to present formal accusations requesting their removal from office ( [Pen.Code,] § 922; see [Gov.Code,] § 3060 et seq.); and to act as the public's 'watchdog' by investigating and reporting upon the affairs of local government (e.g., [Pen.Code,] §§ 919, 925 et seq.)." (McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1170, 245 Cal.Rptr. 774, 751 P.2d 1329.)

Section 3060 empowers the grand jury to present "[a]n accusation in writing against any officer of a district, county, or city including any member of the governing board or personnel commission of a school district or any humane officer for willful or corrupt misconduct in office...." Thereafter, the accusation is to be delivered by the foreman of the grand jury to the district attorney (§ 3062) who "shall" serve a copy on the accused; "shall" by written notice require the accused to appear in court at a specified time to answer the accusation; and "shall" file the accusation with the clerk of the superior court. (§ 3063.) ² If the accused denies the accusation, it "shall" be tried by a jury "in all respects in the same manner as the trial of an indictment." (§ 3070.) Upon conviction, the court "shall" pronounce judgment of removal from office. (§ 3072.)

Plaintiff contends section 3063 is mandatory and therefore, once an accusation has been delivered to the district attorney, he must serve the accused and file the accusation with the superior court, thereby commencing prosecution. Defendant argues the duties enumerated in section 3063 do not arise unless and until the district attorney, in his discretion, has determined prosecution is appropriate. According to defendant, the district attorney has discretion to refuse to prosecute an accusation which, for example, has not been concurred in by at least 12 grand jurors (§ 3060), is based on inadmissible or insufficient evidence (see §§ 3065, 3066), is barred by the statute of limitations (§ 3074), or accuses a public official who is not subject to section 3060. ³ Defendant further argues that if the Legislature had not intended the district attorney to exercise discretion whether to prosecute an accusation, it "would have enabled the grand jury [as it has with indictments] to file the accusation directly with the court for a mandatory prosecution."

"Whether a particular statute is intended to impose a mandatory duty is a question of interpretation for the courts. [Citations.]" (Nunn v. State of California (1984) 35 Cal.3d 616, 624, 200 Cal.Rptr. 440, 677 P.2d 846.) "[S]tatutes must be given a reasonable construction that conforms to the apparent purpose and intention of the law makers, and the various parts of the statutory enactment must be harmonized by considering the particular clause in the context of the whole statute." (Nunn v. State of California, supra, 35 Cal.3d at pp. 624-625, 200 Cal.Rptr. 440, 677 P.2d 846, citations omitted.) In matters of statutory construction, our fundamental concern is legislative intent. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.)

In the Government Code, "[u]nless the provision or the context otherwise requires" (§ 5), " '[s]hall' is mandatory and 'may' is permissive" (§ 14). Ordinary deference to the Legislature requires that when a statute uses a term defined as a word of art the term be given its legislatively defined meaning. However, this is not always true of the word "shall." (See Governing Board v. Felt (1976) 55 Cal.App.3d 156, 161, 127 Cal.Rptr. 381.)

Although statutory language is the most important guide in determining legislative intent, "there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity's or officer's exercise of discretion. [Citations.]" (Morris v. County of Marin (1977) 18 Cal.3d 901, 911, fn. 6, 136 Cal.Rptr. 251, 559 P.2d 606.)

Plaintiff argues that Board of Supervisors v. Simpson (1951) 36 Cal.2d 671, 227 P.2d 14 is controlling because its facts are closely analogous to those presented here. In Simpson, the Board of Supervisors directed the district attorney to institute civil proceedings to abate a public nuisance. The district attorney refused, claiming the duty to initiate civil proceedings resided with the county counsel notwithstanding Code of Civil Procedure section 731 which then provided a district attorney "must" bring an action to abate a nuisance whenever directed to do so by the board of supervisors. (Simpson, supra, 36 Cal.2d at p. 673, 227 P.2d 14.) Concluding that "must" is mandatory, the Supreme Court held mandamus is appropriate to compel the district attorney to act. (Simpson, supra, 36 Cal.2d at pp. 675-676, 227 P.2d 14.) Simpsondid not involve the issue of discretion whether or not to prosecute. The district attorney never disputed that when directed by the board, initiation of an action to abate a nuisance was mandatory. The district attorney simply contended that statutory law imposed the mandatory duty on the county counsel, not the district attorney. (Id., at p. 672, 227 P.2d 14.) Thus, Simpson stands for the proposition that a prosecution, conceded to be mandatory, must be conducted by the public official specifically enjoined to do so by statute.

To determine intent, we begin with the language of the statute itself. (Brown v. Kelly Broadcasting, supra, 48 Cal.3d at 724, 257 Cal.Rptr. 708, 771 P.2d 406.) Section 3063 specifies what the district attorney "shall" do with respect to the accusation. Other provisions of the statute (Stats.1943, c. 134) provide that certain actions "shall" be taken and other actions "may" be taken. For example, section 3060 provides the grand jury "may" present an accusation. Section 3062 provides such accusation "shall" be delivered to the district attorney. Section 3064 provides the accused "shall" appear in court at the time stated in the notice and, if he does not appear, the court "may" proceed in his absence. Section 3067 provides that if the accused denies the accusation, such denial "may" be oral and without oath but "shall" be entered...