Younger v. Superior Court

• Decision Date: 26 April 1978
• Docket Number: S.F. 23517 and S
• Citation: 577 P.2d 1014,145 Cal.Rptr. 674,21 Cal.3d 102
• Court: California Supreme Court
• Parties: , 577 P.2d 1014 Evelle J. YOUNGER, as Attorney General, etc., et al., Petitioners, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; James William MACK, Real Party in Interest. James William MACK, Petitioner, v. Evelle J. YOUNGER, as Attorney General, etc., Respondent. F. 23597.

Page 674

145 Cal.Rptr. 674

21 Cal.3d 102, 577 P.2d 1014

Evelle J. YOUNGER, as Attorney General, etc., et al., Petitioners, v. The SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent;

James William MACK, Real Party in Interest.

James William MACK, Petitioner, v. Evelle J. YOUNGER, as Attorney General, etc., Respondent.

S.F. 23517 and S.F. 23597.

Supreme Court of California, In Bank.

April 26, 1978.

As Modified May 25, 1978.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Michael Franchetti and G. Michael Gates, Deputy Attys. Gen., for petitioners and respondent.

No appearance for respondent Court.

Robert McDermand III and George K. Littlefield, Sacramento, for real party in interest and petitioner.

Patrick R. Murphy, Public Defender (Contra Costa), Jeff C. Bradley, Deputy Public Defender, Leo Paoli, Foster City, Arthur M. Sohcot, San Rafael, Maryjane Mulholland, San Francisco, Peter H. Meyers Washington, D.C., and Gordon S. Brownell, San Francisco, as amici curiae on behalf of real party in interest.

MOSK, Justice.

These writ proceedings present the question whether James William Mack, the real party in interest in the first matter (S.F. 23517) and the petitioner in the second (S.F. 23597), is entitled to the destruction of certain official records pertaining to his conviction in 1972 of possession of marijuana in violation of former Health and Safety Code section 11530. ¹ The cases require us to determine the applicability and validity of portions of two successive acts of the Legislature.

The first relevant statute, which took effect on January 1, 1976, was subdivision (b) of section 11361.5 (S.B. 95). ² The measure authorized the superior courts, on petition, to order the destruction of all records of arrests or convictions for possession of marijuana, held by any court or state or local agency and occurring prior to January 1, 1976. Pursuant thereto Mack filed a petition in respondent superior court on February 17, 1976, for an order of destruction of the records of his 1972 conviction. The court granted the petition on March 5, and ordered that the records in question be destroyed. ³

The Attorney General moved to quash the order of destruction. After various continuances the court denied his motion by an order entered July 1, but stayed enforcement of the destruction order for 60 days. On August 30 the Attorney General filed a petition for original writ of mandate in this court. (S.F. 23517.) We retained jurisdiction, issued a temporary stay, and on November 18, 1976, granted an alternative writ.

Before oral argument could be heard, however, the Legislature changed the law. Effective January 1, 1977, section 11361.5, subdivision (b) (S.B. 95), was superseded by a section of the same number to which we shall hereinafter refer as subdivision (b) of section 11361.5 (A.B. 3050). ⁴ The new statute omits all authorization for destruction of marijuana arrest or conviction records by court order, and provides for such destruction by order of the Department of Justice upon application of the person affected.

On February 4, 1977, Mack applied to the Attorney General as head of the Department of Justice (Gov.Code, § 12510) for destruction of the records of his 1972 conviction pursuant to the new statute. The Attorney General refused to act, however, stating that such applications would not be processed until the constitutionality of the statutory provisions in question is determined by this court. Mack thereupon filed the second of the present two petitions for original writ of mandate in this court (S.F. 23597), seeking to compel the Attorney General to perform his duties under the new legislation. We granted an alternative writ and have consolidated both matters for opinion.

I

In S.F. 23517 the Attorney General principally contends that the records destruction order entered by respondent superior court on March 5, 1976, must be vacated because the statutory authority therefor subdivision (b) of section 11361.5 (S.B. 95), violates the doctrine of the separation of powers. We do not reach the constitutional question, however, because of the well settled rule that an action wholly dependent on statute abates if the statute is repealed without a saving clause before the judgment is final. (See, e. g., Governing Board v. Mann (1977) 18 Cal.3d 819, 829-831, 135 Cal.Rptr. 526, 558 P.2d 1, and cases cited; Southern Service Co., Ltd., v. Los Angeles (1940) 15 Cal.2d 1, 11-12, 97 P.2d 963; Krause v. Rarity (1930) 210 Cal. 644, 652-653, 293 P. 62.) " 'The justification for this rule is that all statutory remedies are pursued with full realization that the legislature may abolish the right to recover at any time.' " (Governing Board v. Mann (1977) supra, 18 Cal.3d 819, 829, 135 Cal.Rptr. 526, 532, 558 P.2d 1, 7, quoting from Callet v. Alioto (1930) 210 Cal. 65, 67-68, 290 P. 438.) Each element of the rule is present here.

First, the proceeding is wholly dependent on statute. In Loder v. Municipal Court (1976) 17 Cal.3d 859, 132 Cal.Rptr. 464, 553 P.2d 624, we held there is no common law right to the erasure or return of records of an arrest not followed by a conviction, and that the power to grant or withhold such a remedy rests exclusively with the Legislature. (Id. at p. 876, 132 Cal.Rptr. 464, 553 P.2d 624.) A fortiori the same is true of the remedy of obliteration or destruction of records of arrest or conviction for marijuana possession. None of the parties contends otherwise.

Second, the Legislature effectively repealed the statutory authority for the order here challenged when it enacted A.B. 3050, operative January 1, 1977. Although cast in terms of an "amendment" to section 11361.5 (S.B. 95), the new legislation completely eliminates the earlier procedure for records destruction by order of court; that procedure, accordingly, was in effect only for the calendar year 1976.

The Attorney General contends, however, that the repeal was a matter of form rather than substance. He emphasizes that the intent of the new legislation is the same as the old to permit the destruction of certain records as a means of alleviating the adverse collateral effects of an arrest or conviction for marijuana possession. A.B. 3050, he asserts, merely substitutes the Department of Justice for the superior court as the "instrumentality" by which such destruction is to be ordered.

The argument misses the mark. We deal here with a question of jurisdiction: S.B. 95 vested respondent superior court with jurisdiction to order destruction of records where none existed before; Mack invoked such jurisdiction by his petition for a destruction order; and A.B. 3050 now removes that jurisdiction from respondent court. For present purposes it is irrelevant that A.B. 3050 also grants similar powers to an agency of the executive branch; the fact remains that the Legislature has revoked the statutory grant of jurisdiction for this proceeding, and has vested it in no other court.

The only legislative intent relevant in such circumstances would be a determination to save this proceeding from the ordinary effect of repeal illustrated by such cases as Mann. But no such intent appears: A.B. 3050 contains no express saving clause, and none is implied by contemporaneous legislation. (Cf. County of Alameda v. Kuchel (1948) 32 Cal.2d 193, 198, 195 P.2d 17; Traub v. Edwards (1940) 38 Cal.App.2d 719, 721-722, 102 P.2d 463.) ⁵

Finally, the order here challenged was not final at the time its statutory authorization was repealed: the Attorney General filed an appeal therefrom on July 16, 1976, and that appeal was still pending on January 1, 1977, when A.B. 3050 took effect. ⁶

We conclude in S.F. 23517 that respondent superior court no longer has jurisdiction to enforce its order for destruction of records pursuant to section 11361.5, subdivision (b) (S.B. 95), and the order must therefore be vacated.

II

In S.F. 23597 petitioner Mack invokes the provisions of A.B. 3050, and seeks to compel the Attorney General to accept and act upon his application for destruction of records pursuant to the current version of section 11361.5, subdivision (b).

The application, presented to the Attorney General on February 4, 1977, was timely. The statute governs records of convictions "occurring prior to January 1, 1976," for the offense, inter alia, of violating "Section 11357 or a statutory predecessor thereof," and permits an application for destruction of such records "if two years or more have elapsed since the date of the conviction . . . ." The records here in issue pertain to a conviction dating from 1972, for the offense of possessing marijuana in violation of former section 11530, a statutory predecessor of section 11357.

The statute next prescribes that the application shall be submitted "upon a form supplied by the Department of Justice" and accompanied by a fee to defray costs, not to exceed $37.50. Mack tendered payment in the statutory amount, but made his application by letter of counsel rather than on an official form of the Department of Justice. In declining to process the application, however, the department acknowledged that no such forms had been issued pending a court decision on the constitutionality of the statute. ⁷

The application thus complied with the procedural prerequisites to relief. "Upon receipt of a sufficient application," the statute then declares, "the Department of Justice shall destroy records of the department, if any, pertaining to such arrest or conviction in the manner prescribed by subdivision (c) and shall notify the Federal Bureau of Investigation, the law enforcement agency which arrested the applicant, and, if the applicant was convicted, the probation department which investigated the applicant and the Department of Motor Vehicles, of the application. Each state or local agency receiving such a notice from the Department of Justice shall destroy...