People v. Hulburt

• Decision Date: 28 November 1977
• Docket Number: Cr. 16180
• Citation: 142 Cal.Rptr. 190,75 Cal.App.3d 404
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Edward HULBURT, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 190

142 Cal.Rptr. 190

75 Cal.App.3d 404

PEOPLE of the State of California, Plaintiff and Appellant, v. Edward HULBURT, Defendant and Respondent.

Cr. 16180.

Court of Appeal, First District, Division 2, California.

Nov. 28, 1977.

Rehearing Denied Dec.28, 1977.

Hearing Denied Feb. 22, 1978.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Eugene W. Kaster, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

James R. McKittrick, Eureka, for defendant and respondent.

TAYLOR, Presiding Justice.

The People appeal from a minute order dismissing for lack of jurisdiction a grand jury accusation filed pursuant to Government Code section 3060 against Hulburt, a deputy sheriff, for willful or corrupt misconduct in office during the campaign for the 1974 election of the Sheriff of Humboldt County. Two questions are raised by this appeal: 1) whether as a deputy sheriff of a general law county Hulburt is an "officer" within the meaning of Government Code section 3060; and 2) if so, is he deprived of equal protection of the laws under the Fourteenth Amendment of the U.S. Constitution, as a deputy sheriff of a charter county is not subject to proceedings pursuant to Government Code section 3060 but can be removed only by county civil service proceedings. We have concluded that the order of dismissal must be reversed, as Hulburt was an officer within the meaning of Government Code section 3060 and is not deprived of equal protection.

Hulburt denied the allegations of the accusation, and on January 13, 1976, moved to dismiss on the ground that he could be removed from office only pursuant to the Humboldt County civil service regulations and not by a proceeding pursuant to Government Code section 3060. ¹ The county civil service proceedings could be commenced only on recommendation of the sheriff. Sheriff Cox admitted that as of February 1976, no disciplinary proceedings against Hulburt had been initiated with the county civil service commission, ² although the grand jury charges had been filed nine months earlier, in May 1975. Hulburt's motion was denied by Judge Petersen ³ on February 18, 1976, ⁴ on the ground that the county was a general law county and that its civil service regulations did not govern Hulburt's removal from office.

Hulburt thereafter filed a petition for a writ of mandamus or prohibition to block the Government Code section 3060 proceedings. This court denied the writ on March 15, 1976, and the state Supreme Court subsequently denied a hearing on April 14, 1976 (Hulburt v. Superior Court, 1 Civ.No. 38600, of which we take judicial notice pursuant to Evid.Code, § 452).

On August 5, 1976, Hulburt filed his second motion to dismiss on identical grounds. This motion was heard by Judge Newsom, ⁵ and granted on the ground that only the county civil service commission could hear and act on Hulburt's removal. This appeal is from the subsequent minute order dated October 18, 1976, dismissing the accusation.

The facts are not in dispute. On May 23, 1975, the Humboldt County grand jury pursuant to Government Code section 3060 filed an accusation against Hulburt, a captain in the county's sheriff's department, for willful or corrupt misconduct in office during the 1974 election of the Sheriff Gene Cox. The specific charges may be summarized as follows: In May, June and July 1974, Hulburt: 1) campaigned for the reelection of the sheriff while on duty in uniform and on the premises of the sheriff's department; 2) solicited contributions from other deputies while on duty; 3) directed and supervised other deputies who circulated petitions for signatures; 4) used his authority and influence to pressure other deputies of the sheriff's department to sign petitions supporting the reelection of Cox; and 5) used his influence so that during the campaign, certain citations were dismissed prior to prosecution, and also suggested that citations for certain offenses be halted until after the election.

Government Code section 3060 ⁶ provides: "An accusation in writing against any officer of a district, county, or city, including any member of the governing board of a school district, for wilful or corrupt misconduct in office, may be presented by the grand jury of the county for or in which the officer accused is elected or appointed. An accusation may not be presented without the concurrence of at least 12 grand jurors." (Emphasis added.) This statute provides for a special action at law and is neither an indictment (In re Burleigh, 145 Cal. 35, 78 P. 242; People v. Hale, 232 Cal.App.2d 112, 42 Cal.Rptr. 533), nor a prosecution for a crime in the ordinary sense of the word (In re Reid, 182 Cal. 88, 187 P. 7), or an impeachment (McComb v. Commission on Judicial Performance, 19 Cal.3d Spec.Trib.Supp. 1, fn. 4, at p. 9, 138 Cal.Rptr. 459, 564 P.2d 1).

The first question presented is whether a deputy sheriff is an "officer" subject to removal pursuant to the above statute. Hulburt argues that the purview of section 3060 is limited to department heads and urges that, therefore, the statute cannot be applied to him. No authority is cited for this contention. The existing case law provides no support for Hulburt's contention but indicates that officers other than department heads are subject to removal under the statute. (See People v. Becker, 108 Cal.App.2d 764, 239 P.2d 898 (a director of board of education)). People v. Hale, 232 Cal.App.2d 112, at page 119, 42 Cal.Rptr. 533, refers simply to officials who commit crimes or commit malfeasance in office. Nor under the instant facts can it be easily contended that Hulburt is only a subordinate. The uncontroverted evidence indicates that he was a captain with supervisory duties.

Further, section 3060 applies by its terms to both elective and appointed officers. Hulburt was appointed by the sheriff. The county officers specifically enumerated by section 24000 (set forth so far as pertinent below) ⁷ include the sheriff, who is unquestionably an officer subject to section 3060 proceedings (People v. Mullin, 197 Cal.App.2d 479, 17 Cal.Rptr. 516). Section 24100 also provides: "Whenever the official name of any principal officer is used in any law conferring power or imposing duties or liabilities, it includes deputies." This language implies that a deputy sheriff upon appointment acquires all of the attributes of the sheriff, including the potential liability for removal pursuant to section 3060.

People v. Gonzales, 136 Cal.App.2d 437, held at pages 441-442, 288 P.2d 588 that a deputy sheriff was a "public officer" for purposes of former Code of Civil Procedure section 1881, subdivision 5 (now Evid.Code, §§ 1040-1042) pertaining to the disclosure of confidential informants. The court held that since the sheriff is a "public officer," his deputy who possesses all of the powers and may perform all of the duties of the sheriff, is also a public officer. Gonzales, supra, was followed in Litzius v. Whitmore, 4 Cal.App.3d 244, so far as pertinent, at page 249, 84 Cal.Rptr. 340 at page 342, as follows: "And in Parsons v. County of Los Angeles, 37 Cal.App.2d 666, 672, 99 P.2d 1079, 1082, it was held: 'It is a well settled rule of law that where there are no restrictive provisions the power of appointment carries with it the power of removal.'

"It is also established that in the absence of contravening civil service rules . . . a county sheriff has 'the absolute right to appoint and discharge any and all deputies and other employees required for the conduct of the office' to which he has been elected. (Cronin v. Civil Service Com., 71 Cal.App. 633, 636, 236 P. 339.)

"Government Code section 26608.2, quoted in full, ante, provides that San Francisco may 'request' Sheriff Whitmore to deputize its employees in order that they may perform police duties in San Mateo County. It then states: 'The sheriff may appoint such deputies.' (Italics added.) It is made clear by the statute that a discretion whether to appoint any specific person rests with the sheriff, and that neither San Francisco nor Litzius has a right to secure his reappointment.

"The soundness of the rule granting a county sheriff wide discretion in the employment, and termination of employment, of his deputies becomes even more apparent when we consider the legal status of the deputy and his relation to the sheriff. People v. Gonzales,* 136 Cal.App.2d 437, 441-442, 288 P.2d 588, 591, states 'a deputy sheriff is a public officer . . . for the reason that a county officer is a public officer . . .; a sheriff is a county officer, and a deputy sheriff possesses all the powers and may perform all the duties attached by law to his principal's office. . . .' Foley v. Martin, 142 Cal. 256, 71 P. 165, 75 P. 842, (100 Am.St.Rep. 123), holding that a sheriff may be liable in compensatory damages for the tort of his deputy, states (p. 260, 71 P. p. 166), quoting earlier authority, ' "The act constituting the cause of action is that of the defendant (sheriff), and, though done through a deputy, is considered in law as done directly and personally by him. " (Citation.)' More recently in County of Placer v. Aetna Cas. & Surety Co., 50 Cal.2d 182, 187, 323 P.2d 753, 756, the same court stated: 'A sheriff is responsible for the acts of his deputies, for they are acting in his private service and in his name and stead, and are only public officers through him. The deputy is not the agent or servant of the sheriff but is his representative, and the sheriff is liable for his acts as if they had been done by himself.' " (Emphasis partially supplied.)

Here, county civil service commission rule IV provided for recruitment and competitive examinations by the county personnel director. Section 5 states that: "Certification The appointing powers shall fill a vacancy by selecting one of the six persons standing...