Silva v. Superior Court

• Decision Date: 17 October 1975
• Court: California Court of Appeals Court of Appeals
• Parties: Ricardo SILVA, Petitioner, v. The SUPERIOR COURT OF the State of California, COUNTY OF LOS ANGELES, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 46121.

Page 78

125 Cal.Rptr. 78

52 Cal.App.3d 269

Ricardo SILVA, Petitioner, v. The SUPERIOR COURT OF the State of California, COUNTY OF LOS ANGELES, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 46121.

Court of Appeal, Second District, Division 5, California.

Oct. 17, 1975.

As Modified on Denial of Rehearing Oct. 27, 1975.

Hearing Denied Dec. 11, 1975.

Thomas M. Eckhardt, Robert C. Youmans and Jim Gallion, San Bernardino, for petitioner.

No appearance for respondent.

John E. Howard, Acting Dist. Atty., and Arnold T. Guminski, Robert N. Jorgensen, and Eugene D. Tavris, Deputy Dist. Attys., for real party in interest.

Jorge Aguilar-Saldana, Director Gen. of the Consular Services of the Republic of Mexico, amicus curiae, on behalf of petitioner.

STEPHENS, Associate Justice.

Ricardo Silva (petitioner), the duly recognized counsul of the Republic of Mexico in Los Angeles, ¹ was charged by indictment with conspiring to commit the crime of soliciting business for an attorney ('capping'), in violation of Penal Code section 182. ² The criminal activity was alleged to have taken place between December 28, 1971 and June 30, 1974, during which time petitioner was serving in his capacity as a consul. As a result of the indictment, an action entitled People of the State of Calif. v. Ricardo Silva, et al., No. A--310545, was instituted against petitioner. Petitioner's motion to dismiss the indictment on the basis of lack of jurisdiction was denied. Petitioner then filed a petition for an alternative writ of prohibition seeking to restrain the superior court and the district attorney from further proceedings against him, and to have the instant charges dismissed.

Petitioner contends: (1) that the courts of the State of California have no jurisdiction in the present action due to the federal constitutional and statutory provisions for exclusive jurisdiction in the federal courts of all actions and proceedings against consuls and vice consuls of foreign states; and (2) that even if the state courts are not precluded from exercising criminal jurisdiction, petitioner, as consul, is immune from prosecution since the acts complained of were within the scope of his official duties.

Discussion

Article III, section of the United States Constitution provides that the judicial power of the United States shall extend to All cases affecting ambassadors, other public ministers, and consuls, and that the Supreme Court shall have original jurisdiction in such cases. In Bors v. Preston, 111 U.S. 252, 256--261, 4 S.Ct. 407, 28 L.Ed. 419, the Supreme Court held that article III, section 2, by conferring original (as distinguished from appellate) jurisdiction upon the Supreme Court, did not thereby confer exclusive jurisdiction. (Cf. Brown v. Pitchess, 13 Cal.3d 518, 521, 119 Cal.Rptr. 204, 531 P.2d 772; 28 U.S.C., § 1251, subd. (b)(1).) However, section 1351 of Title 28 of the United States Code provides: 'The district courts shall have original jurisdiction, Exclusive of the courts of the States, of All actions and proceedings against consuls or vice consuls of foreign states.' (Emphasis added.) To determine the propriety of petitioner's initial contention, we must resolve the issue of whether the phrase 'all actions and proceedings' was intended to encompass not only civil cases, but federal And state criminal proceedings as well.

A review of the history of section 1351 establishes conclusively that at no time has Congress even attempted to confer jurisdiction over state criminal proceedings against consuls on the federal courts or to deprive state courts of such jurisdiction.

The language of section 1351 originated in section 9 of the Judiciary Act of 1789 (1 Stat. 76), which invested the district courts with '. . . jurisdiction exclusively of the courts of the several States, of all suits against consuls or vice-consuls . . .,' subject to an exception for certain offenses. ³ The Revised Statutes of the United States were subsequently enacted and became law on December 1, 1873. Section 711, subdivision (8) of the Revised Statutes declared that federal courts had exclusive jurisdiction of 'all suits or proceedings . . . against consuls or vice consuls.' (1878 Rev.Stat. 135.) Although subdivision 8 was stricken from section 711 by the act of February 18, 1875 (18 Stat. 318), its language was restored by the Judiciary Act of 1911, section 256, subdivision (8) ( 36 Stat. 1160). ⁴

In 1948 Congress enacted 28 United States Code section 1351 (62 Stat. 934), which read: 'The district courts shall have original jurisdiction, exclusive of the courts of the States, Of any civil action against consuls or vice consuls of foreign states.' (Emphasis added.) In the same year Congress also enacted section 3231 of Title 18 of the United States Code (62 Stat. 683, 826), which provided:

'The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.

'Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.'

Thus, in 1948, jurisdiction over actions against consuls appeared to have been vested exclusively in the federal courts with respect to civil matters (Title 28, § 1351) and violations of federal law (Title 18, § 3231). The exercise of jurisdiction by state courts with respect to violations of state criminal laws was not barred. ⁵

In 1949, section 1351 was amended to substitute the phrase 'all actions and proceedings' for 'any civil action.' (Emphasis added.) The Congressional intent for the amendment was set forth as follows: 'This amendment restores language of prior law. The term 'civil actions' as used in the revision was not adequate to cover all suits and proceedings as provided in the prior law.' (S.Rept. No. 303, 81st Cong., 1st Sess., p. 4, U.S.Code Cong. Serv. 1949, pp. 1248, 1251.) The 'prior law,' essentially resurrected by this amendment, prohibited state courts from exercising jurisdiction over civil actions against consuls of a foreign nation and, of course, over federal criminal proceedings. (Davis v. Packard, et al., 32 U.S. 276, 8 L.Ed. 684; ⁶ Compare United States v. Ortega, 11 Wheat. 467, 6 L.Ed. 521.) An exception to this prohibition was recognized in Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489. There, the United States Supreme Court held that the states retain jurisdiction over divorce and alimony proceedings.

In two cases subsequent to the amendment of section 1351 in 1949 (Kita v. Matuszak (1970), 21 Mich.App. 421, 175 N.W.2d 551, and Espinal v. Bayer (1963), 41 Misc.2d 429, 246 N.Y.S.2d 107), the state courts involved found that the exclusive jurisdiction of the federal courts extended to all actions, both civil and criminal, against foreign consuls. In Espinal, the court prohibited the respondents from proceeding against the petitioner (a consul) in the Criminal Court of the City of New York.

We note that if the state court has no jurisdiction under the unrestrictive language of section 1351, there would exist no court in which to prosecute petitioner. ⁷ To determine if this absence of judicial recourse to punish a consul for criminal behavior is the effect of section 1351, we must not only consider the preceding state court decision, but also any relevant treaty provisions and federal judicial decisions. It has been stated that '(t)he powers and duties of consuls rest upon the law of nations as well as upon treaties.' (Schneider v. Hawkins, 179 Md. 21, 16 A.2d 861, 863.)

Under clause two of article VI of the United States Constitution, both the laws of the United States made pursuant to the Constitution and all treaties made 'under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' (Emphasis added.) In Reid v. Covert, 354 U.S. 1, 18, 77 S.Ct. 1222, 1 L.Ed.2d 1148, the United States Supreme Court held that acts of Congress and treaties are on a 'full parity' with each other. When provisions of an act of Congress and a treaty are inconsistent with each other, 'the one last in date will control the other.' (Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31 L.Ed. 386; see also Reid v. Covert, supra, 354 U.S. at 18, 77 S.Ct. 1222; Hijo v. United States, 194 U.S. 315, 324, 24 S.Ct. 727, 48 L.Ed. 994.) However, '(w)hen the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either.' (Id. 124 U.S., at 194, 8 S.Ct. at 458; see also United States v. Lee Yen Tai, 185 U.S. 213, 221, 22 S.Ct. 629, 46 L.Ed. 878.) '(T)he purpose by statute to abrogate a treaty or any designated part of a treaty, or the purpose by treaty to supersede the whole or a part of an act of Congress, must not be lightly assumed,' but must appear clearly and distinctly from the words used in the statute or in that treaty.' (United States v. Lee Yen Tai, supra, at 221, 22 S.Ct. at 633.)

In the instant case, the applicable treaties in force between the United States and Mexico include documents drawn at two multilateral conventions (the Pan American Consular Convention, formalized on February 20, 1928 and 'entered into force' on February 11, 1932 (47 Stat. 1976), and the Vienna Convention on Consular Relations, formalized on April 24, 1963 and 'entered into force' on December 24, 1969 (21 U.S.T. 77)), and one unilateral meeting (formalized in Mexico City on August 12, 1942, and 'entered into force' on June 16, 1943 (57 Stat. 800).) ⁸ Although two of these treaties were in effect at the time of the Espinal decision, and all three at the time of the Kita decision, neither of the courts involved took cognizance of these documents. On the...