Parris v. Zolin

• Court: California Supreme Court
• Writing for the Court: BAXTER; LUCAS
• Citation: Parris v. Zolin, 50 Cal.Rptr.2d 109, 12 Cal.4th 839, 911 P.2d 9 (Cal. 1996)
• Decision Date: 04 March 1996
• Docket Number: No. S046349,S046349
• Parties: , 911 P.2d 9, 96 Cal. Daily Op. Serv. 1486, 96 Daily Journal D.A.R. 2459 David Michael PARRIS, Plaintiff and Respondent, v. Frank S. ZOLIN, as Director, etc., Defendant and Appellant.

Page 109

50 Cal.Rptr.2d 109

12 Cal.4th 839, 911 P.2d 9, 96 Cal. Daily Op. Serv. 1486,

96 Daily Journal D.A.R. 2459

David Michael PARRIS, Plaintiff and Respondent, v. Frank S. ZOLIN, as Director, etc., Defendant and Appellant.

No. S046349.

Supreme Court of California.

March 4, 1996.

Daniel E. Lungren, Attorney General, Henry G. Ullerich and Martin H. Milas, Assistant Attorneys General, Marybelle D. Archibald and Steven L. Simas, Deputy Attorneys General, for Defendant and Appellant.

Charles A. Pacheco and S. Alexandria Jo, Sacramento, for Plaintiff and Respondent.

BAXTER, Justice.

Government Code section 11525 ¹ provides, inter alia, that if a witness subpoenaed to attend a hearing before an administrative agency refuses to respond, "the agency shall certify the facts to the superior court in and for the county where the proceedings are held. The court shall thereupon issue an order directing the person to appear before the court and show cause why he should not be punished as for contempt." In this proceeding we are asked to determine what action the agency must take to fulfill its obligation under section 11525.

We conclude that an administrative agency's obligation under section 11525 is met by transmitting a certification of the facts of an apparent contempt to the superior court. Receipt of the certification triggers the obligation of the superior court to issue an order to show cause to the person who appears to be in contempt. The jurisdiction of the superior court to initiate a contempt proceeding to enforce the agency subpoena arises on receipt of the certification. In this case plaintiff properly invoked the statutory obligation of the Department of Motor Vehicles (department) to certify to the superior court the facts relevant to a witness's failure to appear in response to a departmental subpoena issued at plaintiff's request, but the department failed to transmit the certification to the superior court. As a result the subpoena was not enforced.

Because the Court of Appeal erroneously construed section 11525 as creating only an obligation to prepare a certification of facts, we shall reverse the judgment of the Court of Appeal.

I Background

When plaintiff David Michael Parris was arrested for operating a motor vehicle while under the influence of an intoxicant (Veh.Code, § 23152), the arresting officer gave him notice of suspension of his driver's license. (Veh.Code, § 13353.2.) Plaintiff sought a hearing before the department pursuant to Vehicle Code section 13558, subdivision (a), and served a subpoena for the appearance of the criminalist who had analyzed plaintiff's blood sample at the Department of Justice. The criminalist did not respond to the subpoena. The sworn report of the arresting officer and a document reciting the result of the blood test were received in evidence. Plaintiff asked the hearing officer to take steps under section 11525 ² to have the criminalist held in contempt. The hearing officer offered to prepare a transcript and to provide any documentation required to assist plaintiff in filing a motion to enforce the subpoena in the superior court to compel the appearance of the criminalist. The hearing officer and counsel for the department declined to undertake any additional action to enforce the subpoena. Plaintiff, asserting that imposing the burden and cost of initiating an enforcement action on him was unreasonable, declined to do so. The hearing officer then issued a decision upholding the suspension of plaintiff's driver's license notwithstanding the failure of the witness whom defendant had subpoenaed to appear.

Plaintiff then initiated this proceeding by filing a petition for writ of mandate seeking review of the departmental adjudicatory hearing in the superior court. (Code Civ.Proc., § 1094.5.) The superior court issued an alternative writ of mandate, stayed the suspension, and, after a hearing, granted the petition, set aside the decision of the department and remanded the matter to the hearing officer. In so doing, it ordered the department to follow the procedures set forth in Fitzpatrick v. Department of Motor Vehicles (1993) 13 Cal.App.4th 1771, 17 Cal.Rptr.2d 110 (Fitzpatrick ), to compel the attendance of the criminalist, to rehear the matter, and to consider plaintiff's witnesses.

The department appealed and the Court of Appeal reversed the judgment of the superior court. The Court of Appeal reasoned that section 11525 requires only that an administrative agency "certify the facts to the superior court," which it understood to mean only prepare a statement of the facts for use by a party. It found Fitzpatrick, on which the superior court relied, distinguishable. Therefore, the court reasoned, the burden of compelling attendance is on the party seeking the appearance of the witness who may use the statement in initiating a contempt action. However, that party was responsible for initiating superior court proceedings.

Plaintiff seeks review, asking this court to resolve the apparent conflict between the opinion of the Court of Appeal in this case and that in Fitzpatrick as to the proper construction of section 11525.

II Discussion

A. Initiating a contempt proceeding under section 11525.

Resolution of the statutory construction issue in this matter is made more difficult by the assumption of the parties that a certification of the facts constituting an apparent contempt to the superior court does not in and of itself institute a contempt proceeding. They agree that section 11525 obliges the administrative agency to prepare a certification of facts relevant to a subpoenaed witness's failure to appear at an agency administrative hearing, but both argue that it is incumbent on one of the parties to file a contempt action based on the certification as the means by which to enforce the agency subpoena. Plaintiff asserts that the burden of filing an action is that of the agency, here the department. The department takes the view that it is the party who sought issuance of the subpoena and seeks the attendance of the witness who must file an action to enforce the subpoena in the superior court.

Neither is correct. Transmission of a certification of facts by an administrative agency to the superior court in the county where the hearing is pending is all that is necessary to invoke the jurisdiction of the court and initiate a contempt proceeding. Section 11525 provides that the agency shall certify the facts "to the superior court," thereby imposing on the agency the duty to transmit the certification to the court. On receipt of the certification the clerk must file it as a contempt proceeding without payment of a filing fee and, if the certification states facts which may be the basis of a judgment of contempt, the court must issue an order to show cause.

Section 11525 is specific in directing that when a witness refuses to respond to a subpoena, the agency "shall" certify the facts "to the superior court." ³ It expressly imposes a duty on the superior court to issue an order to show cause re contempt to the witness on receipt of the agency certification. The section does not further define "certify the facts," and unlike other statutes having the same purpose, it does not provide that the witness is deemed to be in contempt of the agency. ⁴ It does provide, however, that a copy of the certified statement of facts be served on the recalcitrant witness.

Notwithstanding the absence in section 11525 of specific procedures to be undertaken when a certification of facts is made to the superior court, section 11525 clearly places the burden of certifying the facts to the superior court on the agency before which the proceeding is conducted. The statute does not command that the agency simply certify the facts in the abstract. It directs a certification "to the superior court," thereby imposing a duty to transmit the certification to that court. And, contrary to the view of the parties, section 11525 does not impose a duty on either party to initiate the superior court proceeding. Instead, the section contemplates that the contempt proceeding will be initiated by the superior court through the issuance of an order to show cause upon that court's receipt of the certified statement transmitted by the agency.

In support of their argument that a party must initiate the superior court contempt proceeding, the parties express concern that section 11525 fails to establish the means by which a certification of facts is to be transmitted to the superior court and does not specify what steps the court or clerk of the court is to take upon receipt of the certification to initiate an action or special proceeding (see Code Civ.Proc., §§ 22, 23) over which the court has jurisdiction, and provides no procedure for the conduct of the contempt hearing. Each argues that because such procedures are omitted from section 11525, the Legislature necessarily intended that a party must file and prosecute a contempt action as a new proceeding in which the party who files is the plaintiff or petitioner.

Section 11525 is not limited to institution of contempt proceedings against subpoenaed witnesses who fail to appear, however. It also applies if any person is guilty of misconduct during or obstructs a hearing. In ascertaining the intent of the Legislature we must be mindful of all situations in which it may be necessary to invoke the contempt procedures made available by section 11525. Our initial obligation in construing a statute is to ascertain the intent of the Legislature in order to carry out the purpose of the law. (People v. Hull (1991) 1 Cal.4th 266, 271, 2 Cal.Rptr.2d 526, 820 P.2d 1036.) Whenever possible a construction must be adopted which will give effect to all provisions of the statute. (Code Civ.Proc., § 1858; Steinberg v. Amplica, Inc. (1986) 42 Cal.3d 1198, 233 Cal.Rptr. 249, 729 P.2d 683.) Not only does the language of section 11525 fail to...