Helena Rubenstein Internat. v. Younger

• Decision Date: 30 June 1977
• Citation: 139 Cal.Rptr. 473,71 Cal.App.3d 406
• Parties: HELENA RUBENSTEIN INTERNATIONAL, dba People's Lobby, a nonprofit corporation, Petitioner and Appellant, v. Evelle J. YOUNGER, Attorney General of the State of California, Respondent; Ed REINECKE, former Lieutenant Governor of the State of California, Real Party in Interest and Respondent. HERLENA RUBENSTEIN INTERNATIONAL, dba People's Lobby, a nonprofit corporation, and Joyce Koupal, etc., Plaintiffs and Appellants, v. Ed REINECKE, former Lieutenant Governor of the State of California, Houston I. Flournoy, former Controller of the State of California and the State of California, Defendants and Respondents. Civ. 45770, Civ. 46036.
• Court: California Court of Appeals Court of Appeals

Page 473

139 Cal.Rptr. 473

71 Cal.App.3d 406

HELENA RUBENSTEIN INTERNATIONAL, dba People's Lobby, a nonprofit corporation, Petitioner and Appellant, v. Evelle J. YOUNGER, Attorney General of the State of California, Respondent;

Ed REINECKE, former Lieutenant Governor of the State of California, Real Party in Interest and Respondent.

HERLENA RUBENSTEIN INTERNATIONAL, dba People's Lobby, a nonprofit corporation, and Joyce Koupal, etc., Plaintiffs and Appellants, v. Ed REINECKE, former Lieutenant Governor of the State of California, Houston I. Flournoy, former Controller of the State of California and the State of California, Defendants and Respondents.

Civ. 45770, Civ. 46036.

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

June 30, 1977.

Hearing Denied Aug. 25, 1977.

Hecht & Diamond and Roger Jon Diamond, Pacific Palisades, for petitioner, plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., and Iver E. Skjeie, Asst. Atty. Gen., for defendants, respondents and real party in interest Evelle J. Younger, Ed Reinecke and State of Cal.

POTTER, Associate Justice.

Helena Rubenstein International, dba People's Lobby, and Joyce Koupal (hereinafter collectively called 'appellants') appeal from orders of dismissal after trial courts sustained demurrers without leave to amend in the mandamus (2d Civ. No. 45770) and taxpayers' (2d Civ. No. 46036) actions consolidated herein. At issue is the meaning of 'convicted' or 'conviction' ¹ under California law for purposes of exclusion from public office.

On July 27, 1974, the Lieutenant Governor of California, Ed Reinecke, was found guilty of perjury (18 U.S.C. § 1621) by a jury in the United States District Court for the District of Columbia.

On July 29, appellants filed a taxpayers' action (Code Civ.Proc., § 526a) against respondents Reinecke, Controller Houston Flournoy and the State of California to enjoin the payment of Reinecke's salary and to require him to return to the state any compensation received after July 27. Appellants also requested respondent Attorney General Younger to initiate quo warranto proceedings (Code Civ.Proc., § 803) to remove Reinecke from office. Appellants claimed that rendition of the jury verdict disqualified Reinecke from holding office and receiving a salary because the jury verdict constituted a 'conviction' under the provision of the California Constitution and implementing legislation providing for exclusion from office of persons 'convicted' of perjury.

On that same day, Governor Ronald Reagan requested respondent Attorney General to render 'an official written opinion' on the meaning of 'conviction' and its effect on Reinecke's status. On August 1, the Attorney General issued his opinion. The opinion basically concluded that a guilty verdict was not a 'conviction' for the purpose of exclusion from public office and that until a judgment was rendered, Reinecke would not be convicted and would be entitled to remain in office and receive his salary. (See 57 Cal.Ops.Atty.Gen. 374 (1974).)

On August 2, the Attorney General informed appellants he would not institute quo warranto proceedings as requested. On August 5, appellants then applied to the Attorney General for leave to sue Reinecke in quo warranto (Code Civ.Proc., § 803; Title 11, Cal.Admin.Code). Their request was denied on August 12.

The following day, appellants filed with the Supreme Court an original petition for writ of mandate to compel the Attorney General to grant appellants leave to sue Reinecke in quo warranto. In their papers filed with the court, both parties stressed that the issue was one of law. On August 28, the Supreme Court refused to hear the case. It issued an 'Order Denying Alternative Writ.' The order stated in full: 'Petition for writ of mandate denied. This order is final forthwith.'

On September 5, appellants filed in the Superior Court of Los Angeles County a petition for writ of mandate involving the identical parties and seeking the same relief as was sought in the Supreme Court. Respondents Reinecke and Attorney General Younger filed answers. The Attorney General also filed a demurrer. On September 16, Judge Lucas sustained the demurrer without leave to amend on the ground that the Supreme Court's denial of the alternative writ of mandate was 'a decision on the merits and the matter in this court (was) res judicata.' On September 17, appellants filed their appeal (2d Civ. No. 45770) from the ensuing order of dismissal in the mandate proceeding.

On September 27, Reinecke's motions for a judgment of acquittal, a new trial and arrest of judgment were denied by the federal district court. On October 2, Reinecke was sentenced ² (placed on probation). Upon sentencing, he resigned from all public offices.

On October 21, respondents Reinecke, Flournoy and the State of California demurred and moved to strike portions of appellants' taxpayers' suit. On November 1, Judge Goebel sustained the demurrer without leave to amend ³ on the ground that '(f)or purposes of Article XX, Section 11 of California Constitution and Government Code Sections 1021 and 3000, 'conviction' is as defined in Government Code Section 1770(h), to wit, 'when trial court judgment is entered. '' On November 13, 1974, appellants filed their appeal (2d Civ. No. 46036) from the ensuing order of dismissal of the taxpayers' proceeding.

The sole substantive issue presented here is whether Reinecke was 'convicted' within the meaning of the applicable California constitutional provision (former art. XX, § 11) and relevant implementing statutes for the purpose of exclusion from holding public office upon the rendition of the jury verdict, as appellants contend, or the judgment, as respondents contend.

We conclude, for the reasons that follow, that 'conviction' so as to exclude from public office does not occur until rendition of judgment following the verdict. We, therefore, affirm the judgments (orders of dismissal) of the trial courts.

Discussion

Prior to discussing the main issue, we must dispose of two preliminary procedural issues. Respondents contend that the proceedings (1) are moot, and (2) are barred by the doctrine of res judicata. ⁴ We disagree.

The Proceedings Are Not Moot

The issue of when a person is 'convicted' of a crime for the purpose of exclusion from public office is of general public interest and is likely to recur. Accordingly, these proceedings are not rendered moot by the fact that Reinecke no longer holds the office of Lieutenant Governor. (Fields v. Eu, 18 Cal.3d 322, 325, 134 Cal.Rptr. 367, 556 P.2d 729.)

The Denial of the Writ by the Supreme Court Is Not Res Judicata

Respondents' contention that the Supreme Court's denial of the writ is res judicata is untenable. In People v. Medina, 6 Cal.3d 484, 491, fn. 6, 99 Cal.Rptr. 630, 634, 492 P.2d 686, 690, our Supreme Court noted that '(t)he denial without opinion of a petition for a writ of mandate . . . is not res judicata except when the sole possible ground of denial was on the merits or it affirmatively appears that the denial was intended to be on the merits.' Here, the Supreme Court summarily denied the petition; it did not issue an alternative writ or order to show cause and did not hear the matter and render a written opinion on the merits. There were other possible reasons for the denial. As a matter of judicial policy, the Supreme Court usually refuses to exercise its original jurisdiction where, as here, the proceeding can be brought in the first instance in a lower court in order 'to encourage the filing of petitions for extraordinary writs in the superior court.' (Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247, 269, 104 Cal.Rptr. 761, 776, 502 P.2d 1049, 1064.) ⁵ The order denying the alternative writ merely stated: 'Petition for writ of mandate denied. This order is final forthwith.' We do not consider this statement 'affirmative proof' that the Supreme Court 'intended' this denial to be res judicata of the merits of the issues raised.

Reinecke Was Not 'Convicted' Until the Judgment Was Entered

At all times relevant to this proceeding, article XX, section 11 of the California Constitution provided in pertinent part: ⁶ 'Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes. . . .' This provision of the 1879 Constitution was originally enacted in the 1849 Constitution as article XI, section 18.

The Legislature has enacted various statutes to implement the exclusion from public office. Government Code section 1021 provides: 'A person is disqualified from holding any office upon conviction of designated crimes as specified in the Constitution and laws of the State.' Section 3000 of the Government Code states: 'An officer forfeits his office upon conviction of designated crimes as specified in the Constitution and laws of the State.' Section 1770, as amended in 1971, provides in pertinent part:

'An office becomes vacant on the happening of any of the following events before the expiration of the term:

'. . .ice

'(h) His conviction of a felony or of any offense involving a violation of his official duties. An officer shall be deemed to have been convicted under this subdivision when trial court judgment is entered.'

Section 1770, subdivision (h) is the only section which purports to define at which point a 'conviction' occurs. By its passage, the Legislature has determined that, for the purpose of exclusion, a public officer is 'convicted' when a judgment is entered.

Appellants, however, contend that a person stands 'convicted' for purposes of exclusion from office as soon as the jury returns a verdict. They assert that the legal meaning of 'conviction' was well settled before the adoption of the Constitution in 1879 and, therefore, the language in the constitutional provision must be construed accordingly. Appellants apparently do not...