People v. Hale

• Decision Date: 05 February 1965
• Docket Number: Cr. 153
• Citation: 232 Cal.App.2d 112,42 Cal.Rptr. 533
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Walter R. HALE, Auditor-Controller of the County of Sacramento, State of California, Defendant and Respondent. . California

Page 533

42 Cal.Rptr. 533

232 Cal.App.2d 112

The PEOPLE of the State of California, Plaintiff and Appellant, v. Walter R. HALE, Auditor-Controller of the County of Sacramento, State of California, Defendant and Respondent.

Cr. 153.

District Court of Appeal, Fifth District. California.

Feb. 5, 1965.

Hearing Denied March 31, 1965.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., Sacramento, for appellant.

Adon V. Panattoni and Floyd V. Gibbert, Sacramento, for respondent.

CONLEY, Presiding Justice.

Upon suggestion of the court, with the acquiescence of respective counsel, three phases of the prosecution of Walter R. Hale, Auditor-Controller of the County of Sacramento, State of California, arising from an accusation brought against him by the Grand Jury of Sacramento County were dealt with in contemporaneous arguments. The proceeding first requiring a ruling is a motion on the part of the respondent to dismiss, on the basic ground that the law does not permit an appeal from the determination of the trial court that there was a complete lack of evidence to warrant the presentment of an accusation against Mr. Hale during his current term of office; secondly, if the motion to dismiss should be denied, we must consider the appeal itself; and, thirdly, if the motion to dismiss the appeal is approved, it will be incumbent upon us to consider whether the state's alternative request for a writ of mandate should be granted; in this latter connection, the People petitioned for a writ of mandate requiring the trial court to receive the plea of Mr. Hale as to the truth of the accusation and, in the event of a plea of not guilty, to try the case, on the theory that, if the trial court acted without authority in sustaining the objection to the accusation, such ruling was completely outside of the jurisdiction of the trial court, and a nullity (see: People v. Superior Court of State of California in and for County of Sacramento, Cal.App, 42 Cal.Rptr. 542 ¹). Upon the conclusion of the argument, this court ordered the submission of all three questions.

On June 17, 1963, the grand jury returned an accusation against the respondent, Walter R. Hale, who presently is the Auditor-Controller of the County of Sacramento, (originally appointed by the board of supervisors of that county, but, since, re-elected to a full term by the voters) charging him with wilful misconduct in office. The accusation was one of the end results of a protracted and eye-opening investigation of a garbage franchise in Sacramento County, the record of which involved a reporter's transcript of 1590 pages and almost 100 written exhibits. This lengthy record contains more than one intimation of personal corruption and unhappily raises questions concerning the efficiency of selected public representatives in attempting to solve some of the complex problems of urbanization. The duty of each of the justices of this court, however, is not to attempt to act as a Cato, but to determine whether, under the law, the rights of the respondent were correctly apprehended and enforced by the trial judge.

The accusation states that on January 6, 1958, the county awarded to North American Waste Disposal Service Company (NAWDSCO), a copartnership, then consisting of Allan T. Olson, Ben G. Petrucci, Ralph Scovel and Joseph Arbini, an exclusive garbage franchise, which fixed the rates to be charged for service to the public in the northern part of the county; it provided, among other things, that there could be a review of such rates by the board of supervisors at any time after it had been in effect for three years; that Walter R. Hale had been the accountant for the partnership when it began business, and that he had 'set up its books and supervised the keeping of its accounts and those of some of its interlocking companies until January, 1961'; that 'The said WALTER R. HALE well knew that North American Waste Disposal Service Company had made excessive profits from its said franchise, that its books were irregularly set up and maintained, and that audit of the said books would be embarrassing to the said company and to the said WALTER R. HALE'; that about June 1, 1961, an audit of the records and books of the company was begun under the direction of the then Auditor-Controller of Sacramento County; that by September 1, 1961, the audit had substantially progressed and had revealed the existence of excessive profits and possible irregularities in management and accounting; that about September 1, 1961, Walter R. Hale became the auditor-controller and served as such until the end of his term of office on January 7, 1963; that, upon taking office, the said Hale caused work on the audit to be stopped and 'suppressed the information theretofore developed thereby'; that on January 7, 1963, he entered upon a new, but consecutive, term of office by reason of his election to the position and that he has served as such ever since. The accusation ends as follows:

VII

'At all times since September 1, 1961, and specifically throughout his present term of office, the said WALTER R. HALE has wilfully and corruptly suppressed and concealed information concerning the earnings and transactions of North American Waste Disposal Service Company which would, in the ordinary course of business, have come to the attention of the Board of Supervisors of the County of Sacramento.

VIII

'At all times since September 21, 1961, and specifically throughout his present term of office, the said WALTER R. HALE has wilfully and corruptly exerted influence to delay, confuse and avert independent investigation of the earnings and transactions of the said North American Waste Disposal Service Company by or at the direction of the Board of Supervisors of the County of Sacramento.

IX

'That the information concerning the earnings and transactions of the said North American Waste Disposal Service Company which was suppressed and concealed as aforesaid by the said WALTER R. HALE was material and relevant to administration of the said franchise by the Board of Supervisors of the County of Sacramento, and its prompt and complete revelation was required in the public interest.'

Upon arraignment, the defendant filed objections (Gov.Code, §§ 3065 and 3066) to the accusation on the following grounds:

'(1) That the evidence presented to the grand jury does not show any evidence of misconduct on the part of the accused, WALTER R. HALE.

'(2) That the evidence presented to the Grand Jury does not show any evidence of misconduct on the part of the accused, WALTER R. HALE, during his present term of office.'

The trial court finding that 'there is no evidence in the record of any misconduct on the part of the accused, WALTER R. HALE, during his present term of office' sustained the objections and ordered the dismissal of the accusation. (Emphasis added.) Within ten days thereafter, the Attorney General filed a notice of appeal, and respondent now moves to dismiss the appeal on the ground that the law does not permit it.

The action was originally given a civil number by the clerk of the Third District Court of Appeal (where the appeal was lodged prior to the removal of the cause to this district by order of the Supreme Court), and, upon transfer, the clerk of this court followed that precedent by assigning a civil number to the action. This was a minor and relatively unimportant error; for clearly this should be treated as a criminal proceeding rather than a civil matter. (Peole v. McKamy, 168 Cal. 531, 143 P. 752; In re Shepard, 161 Cal. 171, 118 P. 513; In re Burleigh, 145 Cal. 35, 78 P. 242; Kilburn v. Law, 111 Cal. 237, 43 P. 615; Wheeler v. Donnell, 110 Cal. 655, 43 P. 1; In re Curtis, 108 Cal. 661, 662, 41 P. 793; Thurston v. Clark, 107 Cal. 285, 289, 40 P. 435; Gibson v. County of Sacramento, 37 Cal.App. 523, 528, 174 P. 935; Coffey v. Superior Court of Sacramento County, 2 Cal.App. 453, 83 P. 580; People v. Mullin, 197 Cal.App.2d 479, 17 Cal.Rptr. 516; Laguna Beach Unified School District of Orange County v. Lewis, 146 Cal.App.2d 463, 467, 304 P.2d 59.) Consequently, this court has ordered the assignment of a new criminal number to the case.

A preliminary question, which should be finally disposed of, is whether or not the scope of the accusation must be rigidly restricted to the present term of office of the auditor-controller beginning January 7, 1963. The answer is clear: under the law, the alleged offense deals only with the present term of office to which Mr. Hale was elected by the people of Sacramento County; it cannot be justified by any wrongful or improper act or omission of which he may have been guilty prior to the commencement of his current term. In People ex rel. Bagshaw v. Thompson, 55 Cal.App.2d 147, at pages 153-154, 130 P.2d 237, at page 241, it is said:

'One term of an office is separate and distinct from other terms of the same office. A proceeding for the removal of an officer cannot be maintained after the accused has ceased to hold his office, nor for a violation of his duty while serving in another office, or in another term of the same office.'

Reference is made in the opinion just quoted to the case of Thurston v. Clark, supra, 107 Cal. 285, 288, 40 P. 435, 436, where it is said:

'By parity of reasoning, an officer cannot, under the same section, be removed from office for a violation of his duties while serving in another office, or in another term of the same office.' (See also: Reid v. Superior Court, 44 Cal.App. 349, 353-355, 186 P. 634.)

The Attorney General suggests that the rule in Thurston v. Clark, supra, is too narrow and that errors and omissions of a county officer in a preceding term may be weighed by a jury in determining whether he should be removed from office in the current term. But this argument is not sound. An accusation does not test whether a county officer has been a good man or a bad man as...