Zumwalt v. Superior Court

• Decision Date: 31 July 1989
• Docket Number: No. S001618,S001618
• Citation: 49 Cal.3d 167,260 Cal.Rptr. 545,776 P.2d 247
• Court: California Supreme Court
• Parties: , 776 P.2d 247 Robert D. ZUMWALT, as County Clerk, etc., Petitioner, v. The SUPERIOR COURT of San Diego County et al., Respondents; William E. PIERCE, as Executive Officer, etc., Real Party in Interest.

Page 545

260 Cal.Rptr. 545

49 Cal.3d 167, 776 P.2d 247

Robert D. ZUMWALT, as County Clerk, etc., Petitioner, v. The SUPERIOR COURT of San Diego County et al., Respondents William E. PIERCE, as Executive Officer, etc., Real Party in Interest.

No. S001618.

Supreme Court of California In Bank.

July 31, 1989.

Alden J. Fulkerson, San Diego, for petitioner.

Kenneth Andreen, Blumberg, Kerkorian, Andreen Seng & Ikeda, Fresno, Lloyd M. Harmon, Jr., County Counsel, Anthony Albers, San Diego, and Daniel J. Wallace, Chief Deputy County Counsel and Stephen R. Magruder, Deputy County Counsel, for respondents and real party in interest.

Adrian Kuyper, County Counsel (Orange), Richard D. Oviedo, Deputy County Counsel, Patrick J. Borchers and Downey, Brand, Seymour & Rohwer as Amici Curiae on behalf of petitioner.

Charles D. Field, Margaret F. Tanaka and Best, Best & Krieger and Deborah Kanter as amici curiae on behalf of respondent.

Alan Carlson, James H. Harmon and Byrd, Sturdevant, Harmon & Pace as amici curiae on behalf of respondents and real party in interest.

EAGLESON, Justice.

Article VI, section 4, of the California Constitution provides, inter alia: "The county clerk is ex officio clerk of the superior court in the county."

We are asked by the County Clerk of San Diego County to review the decision of the Court of Appeal denying his petition for writ of mandate. By that petition he sought to restrain the County of San Diego from transferring certain court-related duties and the civil service employees who perform them from his control to that of a superior court executive officer, and to compel the superior court to rescind a local superior court rule that directs transfer of both the employees and their court-related duties from petitioner's control to that of court executive officer.

The superior court rule in issue had been adopted, pursuant to Government Code section 69898, ¹ on May 6, 1987, to become effective July 1, 1987, the date upon which the petition was filed. Mandate was sought on grounds that section 69898 conflicted with article VI, section 4 of the California Constitution, and adoption of the local rule was, therefore, an abuse of judicial discretion which interfered with the clerk's constitutional duties. ² After the Court of Appeal had first summarily denied the petition, this court granted review, and transferred the matter back to the Court of Appeal with directions to issue an alternative writ. Having done so, the Court of Appeal again denied the petition.

The Court of Appeal rejected petitioner's constitutional claim, holding that article VI, section 4 of the state Constitution, empowered the Legislature to specify the duties to be performed either by the county clerk or by an officer or employee of the superior court. Having concluded that the powers and duties of the county clerk, as such, and in his role as ex officio clerk of the superior court, have always been a matter entrusted to the Legislature by our Constitution, we agree that both the statute and the superior court rule are valid, and affirm the judgment of the Court of Appeal. ³

CONSTITUTIONAL AND STATUTORY HISTORY

The office of county clerk was first created by the Constitution of 1849, which provided in article VI, section 7: "The Legislature shall provide for the election, by the people of a Clerk of the Supreme Court, and County Clerks, District Attorneys, Sheriffs, Coroners, and other necessary officers; and shall fix by law their duties and compensation. County Clerks shall be, ex officio, Clerks of the District Courts in and for their respective counties." Although the provision did not state that the ex officio duties of the office were to be established by the Legislature, it expressly stated that the duties of the clerk of the Supreme Court and county clerk were to be matters under legislative control. ⁴

In an 1862 constitutional amendment, the provision creating the various offices of clerk became section 11 of article VI, which then read: "The Legislature shall provide for the election of a clerk of the supreme court, county clerks, district attorneys, sheriffs, and other necessary officers, and shall fix by law their duties and compensation. County clerks shall be ex officio clerks of the courts of record in and for their respective counties...." When this provision was adopted the Legislature had already responded to the command of former section 7 of article VI by enacting legislation establishing the duties of the county clerks. The duties thus established included those performed by the county clerks as ex officio clerks of the district courts.

The first statute enacted pursuant to the power to establish the duties of the clerk was an act to define the duties of county clerk, passed April 18, 1850. (Stats.1850, ch. 110, p. 261.) In addition to provisions requiring the clerk to "take charge of and safely keep or dispose of according to law all books, papers, and records, which may be filed or deposited in his office" (id., § 7, p. 262), a provision applicable to either county clerks or clerks of court required that "[H]e issue all writs and processes required to be issued from any Court of which he is a clerk; ... enter, under the directions of the court, all orders, judgment, and decrees proper to be entered; and shall keep in each of said Courts a docket in which shall be entered the title of each cause, with the date of its commencement, a memorandum of every subsequent proceeding in said cause, with the date thereof, and a list of all the fees charged in the cause, and shall keep such other books of record as may be required by law or by the rules of the Court." (Id., § 8, p. 262.)

In 1851, the Legislature imposed additional duties on the clerks, providing, inter alia, that "The Clerk of each Court shall keep the seal thereof." (Stats.1851, ch. 1, § 128, p. 29.) In 1863, the Legislature added the duty to maintain additional records: "Every County Clerk shall keep in separate volumes an index of all suits which may hereafter be commenced in the District Court in and for his county, labeled 'General Index--Plaintiffs,' each page of which shall be divided into seven columns...." (Stats.1863, ch. 200, § 1, p. 260.)

Contemporary construction of the constitutional provision establishing the ex officio duties of office of county clerk thus demonstrates that the grant of power to the Legislature to establish the duties of the county clerk included the power to establish the duties to be performed by the clerk as ex officio clerk, initially of the district court and later of the courts of record in their counties.

The duties of the county clerk, including those ex officio duties as clerk of the courts of record, were incorporated into the Political Code on its adoption in 1872. Section 4204 of the Political Code continued the duty to issue process; enter orders, judgment and decrees; keep a docket; and keep the plaintiff/defendant index. Section 4205 of the Political Code required that the clerk keep "such other records and perform such other duties as are prescribed by law." Some of those "other duties" were created by provisions of the Civil, ⁵ Penal, ⁶ and Civil Procedure Codes adopted in the same year. ⁷ Thus, at the time the present Constitution, the Constitution of 1879, was adopted, the only duties of the county clerk, as such or in his ex officio capacity as clerk of the courts of record, were statutory duties. The office had no inherent, constitutionally vested or conferred powers or duties. ⁸

The 1879 Constitution, without debate thereon by the delegates and drafters, readopted in section 14, of article VI the language of the 1849 Constitution giving the Legislature the power to prescribe the duties of the Supreme Court Clerk, and providing that the "County Clerks shall be ex officio Clerks of the Courts of Record in and for their respective counties, or cities and counties." The power of the Legislature to prescribe the duties of county clerks was moved to article XI. Section 5 of article XI then stated: "The Legislature, by general and uniform laws, shall provide for the election or appointment, in the several counties, of Boards of Supervisors, Sheriffs, County Clerks, District Attorneys, and such other county, township, and municipal officers as public convenience may require, and shall prescribe their duties and fix their terms of office...." ⁹

This court recognized under both the 1849 Constitution and the 1879 Constitution that the Legislature was the sole source of the clerk's power. "The rule as settled by the decisions in this state, with respect to [entry of] such judgment, is that the clerk in entering them acts in a ministerial capacity only, and that he must follow closely the forms provided by law for the exercise of the power conferred on him. In Crane v. Hirshfelder, 17 Cal. 582, in considering this section, the court says: 'The clerk has no general jurisdiction or power to render, or of his own motion, and as his act, to enter judgments; and when in a few exceptional cases the statute confers a power of this sort, as he looks to the statute for the source of his authority so he must pursue, at least substantially, the directions of the statute, in order to impart validity to his acts.' " (Old Settlers Investment Co. v. White (1910) 158 Cal. 236, 245, 110 P. 922.)

Earlier, in Providence Tool Company v. Prader (1867) 32 Cal. 634, 636, discussing entry of a default judgment, we also recognized that "[t]he Clerk derives all his powers from the statute, ..." (See also, Bond v. Pacheco (1866) 30 Cal. 530, 534-535, and cases cited.)

In the 1966 revision of the Constitution, the provision establishing the superior court and naming the county clerk as ex officio clerk of that court was placed in section 4 of article VI. This new section also directed the Legislature to provide for officers and employees of the court, and now reads: "In each county there is a...