Phillips v. Seely

• Decision Date: 15 November 1974
• Citation: 43 Cal.App.3d 104,117 Cal.Rptr. 863
• Court: California Court of Appeals Court of Appeals
• Parties: Harry A. PHILLIPS et al., Plaintiffs and Appellants, v. F. H. SEELY, Jr., Auditor of the County of Butte, et al., Defendants andRespondents, Jerome E. Warren, Intervenor and Respondent. Civ. 13635.

Page 863

117 Cal.Rptr. 863

43 Cal.App.3d 104

Harry A. PHILLIPS et al., Plaintiffs and Appellants, v. F. H. SEELY, Jr., Auditor of the County of Butte, et al., Defendants andRespondents Jerome E. Warren, Intervenor and Respondent.

Civ. 13635.

Court of Appeal, Third District, California.

Nov. 15, 1974.

Hearing Denied Jan. 8, 1975.

Blade, Farmer & LeClerc, Oroville, Peters, Fuller, Byrne & Rush, Chico, Millington & Millington, Gridley, Bruce Grinnell, Oroville, by Raoul LeClerc, for plaintiffs and appellants.

Daniel V. Blackstock, County Counsel, Oroville, Skow & Jones, Chico, By Daniel V. Blackstock, Oroville, for defendants and respondents.

Charles Skow, Chico, for intervenor and respondent.

CARTER, ^* Associate Justice.

Plaintiff taxpayers appeal after a court trial from a judgment upholding the validity of a contract entered into between the County of Butte and intervener Jerome E. Warren for the rendition of legal services by Warren to certain indigent defendants in criminal matters, indigent juveniles and conservatees in need of and entitled to legal assistance at public expense. The judgment further ordered the defendant, F. H. Seely, Jr., as auditor of Butte County to pay warrants to Warren pursuant to the contract.

Plaintiffs contend on appeal:

1. Defendant board of supervisors lacked authority, express or implied, to contract with Warren to represent indigents;

2. The contract is invalid because it fails to allocate between 'services' and 'investigatory expenses' the gross monthly payment to Warren;

3. The contract was the result of solicitation on the part of Warren and is void as violative of public policy;

4. Public policy requires competitive bidding for the contracted services.

5. The contract is contrary to public policy because of a conflict of interest;

6. The board of supervisors failed to give adequate notice of the scope and action to be taken at the board meeting regarding the contract.

Defendants contend that the appeal is moot and since plaintiffs failed to comply with Code of Civil Procedure sections 860--870, they are precluded from challenging the validity of the contract.

FACTS

In early May of 1971, a news article attributable to the county administrator of Butte County indicated the existence of a problem of providing funds for court-appointed counsel for indigent persons in Butte County. As a result of this article, Warren discussed the matter with Jack McKillop, a member of the Butte County Board of Supervisors. McKillop suggested that Warren submit a proposal regarding legal services, an idea in which John Schroder, an attorney, and Robert Mueller, the Butte County District Attorney, were interested as well. On May 24, 1971, Warren submitted a proposal to the board for the rendition of legal services to indigents which was accepted, with minor changes, on that day. A written contract was executed by the duly authorized chairman of the board, Jere E. Reynolds, and by Warren. Thereafter, Mueller resigned his position as district attorney, and, along with Schroder as associates of Warren, has represented indigents pursuant to court assignment in Butte County. The agreement provided, among other things, that Warren was to assume full responsibility for furnishing with associate counsel the required legal wervices on a daily basis in two departments of the superior court, the Chico Municipal Court and the Oroville, Gridley, Paradise and Biggs Justice Courts. The county retained the right to cancel the contract upon ten days' written notice, if for any reason other than a conflict of interest any of the judges of the superior court declined or refused to appoint Warren as defense counsel for indigents.

On August 6, 1971, 73 days after execution of the agreement, plaintiffs filed their complaint to enjoin defendant F. H. Seely, Jr., auditor of Butte County, from expending public moneys for or as a consequence of services rendered pursuant to the contract. Copies of the summons and complaint were served on the various defendants. Answers were filed, and on December 14, 1971, the case proceeded to trial.

At the beginning of the trial the defendants and intervener Warren orally moved to dismiss, contending plaintiffs had failed to comply with Government Code sections 53510 and 53511 and Code of Civil Procedure sections 860--870. Without holding a hearing on whether good cause existed to excuse plaintiffs' noncompliance, the court took the motion under advisement. After the case was tried, briefed and submitted, the trial court held that Code of Civil Procedure sections 860--870 did not apply.

DISCUSSION OF CONTENTIONS

1. Failure of Plaintiffs to File Their Complaint Within 60 Days of Execution of the Contract on May 24, 1971, Was Not Jurisdictional.

There is no dispute that plaintiffs' complaint was a texpayers' action seeking to challenge the validity of a contract between a public agency (Butte County Board of Supervisors) and Warren. Government Code section 53510, relating to validating proceedings provides: 'As used in this article (art. 5, pt. 1, div. 2, tit. 5) 'local agency' means county, city, city and county, public district or any public or municipal corporation, public agency or public authority.'

Government Code section 53511 provides: 'A local agency may gring an action to determine the validity of its bonds, warrants, contracts, obligations or evidences of indebtedness pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure.'

Code of Civil Procedure section 860 provides: 'A public agency may upon the existence of any matter which under any other law is authorized to be determined pursuant to this chapter, and for 60 days thereafter, bring an action in the superior court of the county in which the principal office of the public agency is located to determine the validity of such matter. The action shall be in the nature of a proceeding in rem.'

Code of Civil Procedure section 863 provides: 'If no proceedings have been brought by the public agency pursuant to this chapter, any interested person may bring an action within the time and in the court specified by Section 860 * * * to determine the validity of such matter. The public agency shall be a defendant and shall be * * * served with the summons and complaint in * * * the action in the manner provided by law for the service of a summons in a civil action. In any such action the summons shall be in the form prescribed in Section 861.1 * * * except that in addition to being directed to 'all persons interested in the matter of (specifying * * * the matter),' it shall also be directed to * * * the public agency. If the interested person bringing such action fails to complete the publication and such other notice as may be prescribed by the court in accordance with Section 861 * * * and to file proof thereof in * * * the action within 60 days from the filing of his complaint, * * * the action shall be forthwith dismissed on the motion of the public agency unless good cause for such failure is shown by * * * the interested person.'

On April 2, 1970, Justice Mosk, in City of Ontario v. Superior Court, 2 Cal.3d 335, 339--344, 85 Cal.Rptr. 149, 466 P.2d 693, carefully summarized the statutory history of Code of Civil Procedure sections 860--870, and the consequences with resulted from the enactment of sections 53510 and 53511 of the Government Code in 1963. The Supreme Court stated: 'If, as the City here argues, the word 'contracts' in section 53511 is taken to mean Any contract into which the agency may lawfully enter, the far-reaching expansion of the statute becomes apparent. The vast majority of such an agency's dealings are necessarily undertaken by means of contracts; some involve routine ministerial matters, but others embody important policy decisions affecting the public at large.

'The public's opportunity to challenge those decisions, moreover, is commensurately restricted by this legislation. Section 863 of chapter 9 provides that if the public agency does not initiate validating proceedings, 'any interested person may bring an action within the time and in the court specified by Section 860 of this chapter to determine the validity of such matter.' This seems innocuous enough, until one reads section 869: 'No contest except by the public agency or its officer or agent of any thing or matter under this chapter Shall be made other than within the time and the manner herein specified.' (Italics added.) In other words, while section 863 says that an interested person 'may' bring such an action, section 869 says he Must do so or be forever barred from contesting the validity of the agency's action in a court of law. Yet no such restriction is placed on the agency itself, which is in effect authorized by section 869 to disregard the 60-day statute of limitations imposed by section 860.

'The practical consequence of this statutory scheme should be clearly recognized: an agency may indirectly but effectively 'validate' its action By doing nothing to validate it; unless an 'interested person' brings an action of his own under section 863 within the 60-day period, the agency's action will become immune from attack whether it is legally valid or not. Indeed, in the case at bar the City concedes this to be so. Thus a statute which begins by providing a remedy to be pursued by public agencies, expressly declaring it to be 'in the nature of a proceeding in rem' (§ 860), concludes by making it unnecessary for such agencies to do anything at all, and the incidental or derivative remedy of an 'interested person' turns out to be controlling. This is truly a case of the tail wagging the dog.' (Id. at pp. 341--342, 85 Cal.Rptr. at p. 153, 466 P.2d at p. 697.) (Original emphasis; fn. omitted.)

Our research has failed to disclose any legislative action which has sought to extend the 60-day period of time in which an action may be brought by 'interested...