White v. County of Sacramento

• Decision Date: 21 June 1982
• Docket Number: S.F. 24394
• Citation: 183 Cal.Rptr. 520,646 P.2d 191,31 Cal.3d 676
• Court: California Supreme Court
• Parties: , 646 P.2d 191 Robert WHITE, Plaintiff and Appellant, v. COUNTY OF SACRAMENTO et al., Defendants and Respondents.

Page 520

183 Cal.Rptr. 520

31 Cal.3d 676, 646 P.2d 191

Robert WHITE, Plaintiff and Appellant, v. COUNTY OF SACRAMENTO et al., Defendants and Respondents.

S.F. 24394.

Supreme Court of California.

June 21, 1982.

David P. Mastagni and Richard J. Chiurazzi, Sacramento, for plaintiff and appellant.

Cecil W. Marr, Robert J. Loew, Loew & Marr, Los Angeles, William H. Sortor, David P. Clisham and Carroll, Burdick & McDonough, San Francisco, as amici curiae on behalf of plaintiff and appellant.

L. B. Elam, County Counsel, and Manuel E. Lopes, Deputy County Counsel, Sacramento, for defendants and respondents. John W. Witt, City Atty., Ronald L. Johnson, Chief Deputy City Atty., John M. Kaheny, Deputy City Atty., Donald L. Clark, County Counsel, Lloyd M. Harmon, Jr., Chief Deputy County Counsel, and Arlene Prater, Deputy County Counsel, San Diego, as amici curiae on behalf of defendants and respondents.

Cecil W. Man, Robert J. Loew, Loew & Man, Los Angeles, for amicus curiae Los Angeles Police Protective League.

BIRD, Chief Justice.

Does the Public Safety Officers Procedural Bill of Rights Act (Bill of Rights Act) afford a peace officer, who is reassigned to a lower paying position based on his alleged deficient performance, a right to an administrative appeal?

I.

The facts are not in dispute. Plaintiff, Robert White, is a deputy sheriff with the Sacramento County Sheriff's Department (Department). Defendants are the County of Sacramento, its civil service commission and its sheriff's department.

Under the Department's salary structure, deputy sheriffs who are assigned to certain more specialized positions, such as detective, are given the rank of corporal and a 5 percent special pay allowance. Plaintiff held such assignments from 1972 to 1980. He served in the detective division from 1975 to 1980.

In December of 1979, the Department told plaintiff that his performance was deficient and that he would be reassigned to the patrol division on or about January 13, 1980. As a result, he would lose both his rank and the special pay allowance.

Plaintiff sought a hearing before the Sacramento County Civil Service Commission, but his request was denied. Thereafter, he filed a petition for a writ of mandate to compel the commission to grant him a hearing. Relying on the Bill of Rights Act (Gov.Code, §§ 3300-3311), ¹ plaintiff contended that the Department could not reassign him to a lower paying position without affording him an administrative appeal, as provided in section 3304, subdivision (b) of the act.

The trial court denied his petition and this appeal followed.

II.

The Bill of Rights Act sets forth a number of basic rights and protections which must be accorded individual public safety officers by the public agencies which employ them. ² One of the basic protections is the right to an administrative appeal of punitive actions. Section 3304, subdivision (b), provides that "No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency without providing the public safety officer with an opportunity for administrative appeal." The sole question presented by this case is whether this right to an appeal extends to a public safety officer who is reassigned to a lower paying position because of his alleged deficient performance. ³

Resolution of this question obviously turns on the definition of the term "punitive action." Plaintiff contends that his reassignment was a "demotion" and his loss of the special pay allowance a "reduction in salary" both of which, by definition, are punitive actions giving rise to a right of appeal under section 3304. Plaintiff relies upon section 3303 which defines "punitive action" as "any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment."

Defendants contend, however, that the phrase "for purposes of punishment" qualifies each of the preceding terms, thereby precluding from the reach of the statute "demotions" or "reductions in salary" not imposed "for purposes of punishment." Since plaintiffs' reassignment was imposed for deficient performance and not as punishment for misconduct, they contend that he is not entitled to a hearing under section 3304.

In order to adopt this proposed construction of section 3303, this court would have to violate the most fundamental rules of statutory construction and ignore the legislative history and the underlying policy of the Bill of Rights Act.

A longstanding rule of statutory construction--the "last antecedent rule"--provides that "qualifying words, phrases and clauses are to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote." (Board of Port Commrs. v. Williams (1937) 9 Cal.2d 381, 389, 70 P.2d 918; accord People v. Corey (1978) 21 Cal.3d 738, 742, 147 Cal.Rptr. 639, 581 P.2d 644.) Applied here, the rule requires that the phrase "for purposes of punishment" be read to qualify only the word "transfer" and not the words "dismissal," "demotion," "suspension," "reduction in salary," and "written reprimand."

Further support for this reading is provided by the punctuation of the statute. (See Estate of Coffee (1941) 19 Cal.2d 248, 120 P.2d 661; Duncanson-Harrelson Co. v. Travelers Indemnity Co. (1962) 209 Cal.App.2d 62, 25 Cal.Rptr. 718.) Evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma. (Board of Trustees v. Judge (1975) 50 Cal.App.3d 920, 927-928, fn. 4, 123 Cal.Rptr. 830.)

Here, however, the phrase "for purposes of punishment" is not set off from the preceding terms by a comma. Instead, the entire phrase, "transfer for purposes of punishment," is set off from the preceding terms by a comma followed by the word "or." Such use of the word "or" in a statute indicates an intention to use it disjunctively so as to designate alternative or separate categories. (Piet v. United States (S.D.Cal.1959) 176 F.Supp. 576; accord People v. Smith (1955) 44 Cal.2d 77, 279 P.2d 33.) Thus, application of the ordinary rules of statutory construction strongly suggests that the phrase "for purposes of punishment" was intended to modify only the term "transfer."

There are two exceptions to the "last antecedent rule," but on examination it quickly becomes apparent that neither is applicable here. The first exception provides that " '[w]hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.' " (Wholesale T. Dealers v. National etc. Co. (1938) 11 Cal.2d 634, 659, 82 P.2d 3; accord People v. Corey, supra, 21 Cal.3d 738, 742, 147 Cal.Rptr. 639, 581 P.2d 644.)

Here, the phrase "for purposes of punishment" is not equally applicable to all the preceding terms. It would be redundant to provide for a "written reprimand" "for purposes of punishment." A reprimand, by definition, is a punishment, that is, a penalty. Accordingly, to read the statute as defendants suggest would violate the rule that "Interpretive constructions which render some words surplusage ... are to be avoided." (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836.) "[E]very word, phrase and provision employed in a statute is intended to have meaning and to perform a useful function ...." (Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227, 233, 273 P.2d 5; Prager v. Isreal (1940) 15 Cal.2d 89, 98 P.2d 729.)

The second exception to the "last antecedent rule" provides that "[w]here the sense of the entire act requires that a qualifying word or phrase apply to several preceding words ..., [its application] will not be restricted ...." (2A Sutherland, Statutory Construction (4th ed. 1973) § 47.33, p. 159; see People v. Knowles (1950) 35 Cal.2d 175, 217 P.2d 1.) This is, of course, but another way of stating the fundamental rule that a court is to construe a statute " 'so as to effectuate the purpose of the law'." (Tripp v. Swoap (1976) 17 Cal.3d 671, 679, 131 Cal.Rptr. 789, 552 P.2d 749.) "Where a statute is theoretically capable of more than one construction [a court must] choose that which most comports with the intent of the Legislature." (California Mfrs. Assn. v. Public Utilities Com., supra, 24 Cal.3d at p. 844, 157 Cal.Rptr. 676, 598 P.2d 836.)

In this case, the "sense" of the Bill of Rights Act does not require that the phrase "for purposes of punishment" be applied to each of the preceding terms in section 3303. While there can be no doubt that the act is concerned primarily with affording individual police officers certain procedural rights during the course of proceedings which might lead to the imposition of penalties against them (see, e.g., §§ 3303, 3305-3307, 3309), a "transfer" is the only personnel action listed in section 3303 which is not intrinsically disadvantageous to an officer. Each of the other personnel actions--"dismissal," "demotion," "suspension," "reduction in salary" and "written reprimand"--by definition result in disadvantage, loss or hardship. They are by nature penalties, no matter for what reason imposed. A transfer need not be. Indeed, it is entirely possible that a transfer could be advantageous to an officer.

Further support for the view that the Legislature considered the other personnel actions listed in section 3303 as per se "disciplinary" or "punitive" in nature, without regard to the reason for which they are imposed, is provided by the State Civil Service Act. (§ 18500 et seq.) "Under general rules of statutory construction, [this court] may, in construing a statute, consider other statutes that might bear on the meaning of the statute at issue. [Citation.]" (People v. Corey,...