Nutting Appeals Surprise Vacancy decision - Election may end in days
Ray Nutting has appealed the decision that raising bail was an "Official Duty" of an El Dorado County Supervisor. Appeal challenges courts procedure in applying Government Code section 1770 (h) without warning and only after trial concluded. Nutting claims that due process was not preserved and he was denied the opportunity to make any defense in relation to 1770 (h). The court is being asked to rule in an emergency manner to avoid two people being elected for the same office. Due to the pending election only being conducted under the assumption that the office is vacant, a reversal of that decision would end the special election immediately. A favorable decision after the election day would result in two valid office holder for a single office, giving one, or both, a cause to sue for damages including lost salary and benefits.
Via the legal filing:
MEMORANDUM OF POINTS AND AUTHORITIES
This Petition raises questions that are essential to the resolution of Petitioner's rights, but are also questions of first impression involving matters of statewide concern:
1. Whether a misdemeanor violation of the Political Reform Act constitutes a violation of official duties, under section 1770(h) resulting in a vacancy in office, ipso facto, upon conviction?
2. Whether a public official can be removed from office under §1770(h) upon a misdemeanor conviction, in the absence of a determination by the jury, that the official has violated his official duties?
3. When a statute does not expressly define violation of official duty or provide for removal from office, whether an accusation alleging specific misconduct under §3060, et seq. is the method to conclusively establish a violation of official duties resulting in an automatic vacancy under section 1770 (h)?
4. Whether the trial court erred in ruling that Mr. Nutting's seat is vacant upon conviction of the Political Reform Act misdemeanors, where, absent a finding of violation of official duties by the jury, the trial court found the evidence was similar to misconduct under §3060, and used that finding as the basis for the ipso facto removal.?
5. Whether, under the facts of this case, the misdemeanor convictions of Political Reform Act violations constitute an "offense involving a violation of official duties" under section 1770 (h), resulting in a vacancy, ipso facto, upon conviction?
SUMMARY OF ARGUMENT
Section 1770 (h) provides that an office becomes vacant upon an official's "...conviction of a felony or of any offense involving a violation of his or her official duties". Conviction of a felony is conclusive, but
offenses which involve "violation of official duties" are undefined. From as early as 1853, violation or neglect of official duty was a separate public offense:
"The Act of 1853 does provide how — in what manner — upon what procedure — in what Court — officers, not of the first class, shall be tried for that misdemeanor in office known at common law, and recognized in this statute as neglect of official duty. The power of the Legislature to enact such a statute...is plain — as obvious as is the power of the Assembly to prefer and that of the Senate to try articles of impeachment..." (In re Marks, (1873) 45 Cal. 199)
This Act of 1853, together with an earlier statute, are predecessors to current Government Code section §3060, et seq., which provides the manner of trial of public officials for misconduct, including violation of official duty. Extensive statutory authority supports this process as the means to establish a broad range of misconduct in office, including violation of official duty, whether or not the conduct is criminal. Limited exceptions are only when a more specific statute provides for removal as a sanction or alternate method of removal. The Political Reform Act defines the penalties for violation and the effect of a misdemeanor conviction; removal from office is neither the effect of conviction nor an included sanction. No case, published or unpublished, in the 40-year history of the PRA suggests a different conclusion. The State's position before trial was clear: conviction of misdemeanor PRA violations alone would not remove Mr. Nutting from office. No section 3060 accusation was presented; no notice was provided to Mr. Nutting that the charges invoked allegations giving rise to removal from office. The issue was not decided by the jury at trial, instead, the court summarily concluded at sentencing that the convictions were analogous to misconduct in office under section 3060 and stripped him of his seat on the Board of Supervisors. For all of these reasons, the relief requested in this Petition should be granted.
I. THE TRIAL COURT'S RULING REMOVING PETITIONER FROM OFFICE IS UNSUPPORTED BY THE ESTABLISHED STATUTORY FRAMEWORK AND 160 YEARS OF CASE LAW.
The California Constitution, statutes, and judicial interpretation provide a framework for removal of elected officials and other public officers from office. Despite changes around the edges of the procedures, the core framework has remained remarkably constant during the past 160 years. This case raises issues concerning the proper application of those principles and procedures under the laws of the state.
Article VII, section 8, subdivision (b) of the California Constitution provides in relevant part, Laws shall be made to exclude persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes from office or serving on juries. ..6
The section is not self-executing and requires legislation to give it effect. Two separate removal statutes date back to the State's inception, and existed in substantially similar form when early cases were decided. Government Code section 1770, defining conditions resulting in a vacancy, is one statute enacted by the Legislature to comply with the constitutional mandate quoted above. It reads in relevant part:
§ 1770. An office becomes vacant on the happening of any of the following events before the expiration of the term. . . (h) [the incumbent's] conviction of a felony or any offense involving a violation of his or her official duties.7
This provision has been conclusive since 1851 as to removal upon conviction of a felony, but, for non-felonious activity, the meaning of "any offense involving a violation of official duties" has been undefined, with removal for such activity being sought under a process also established in 1851 and now found in Government Code section 3060. Article IV, Sec. 19 of the California Constitution of 1849 provided in relevant part: "All other civil officers shall be tried, for misdemeanors in office, in such manner as the Legislature may provide". Government Code section 3060, et seq., originally enacted in 18518, establishes the statutory scheme for removal in compliance with this constitutional directive. Section 3060 provides for a grand jury accusation charging an official with "willful or corrupt misconduct in office", notice of the charges, an opportunity to object to the legal sufficiency of the accusation, and a trial by jury on the substance of the charges. Upon conviction, and the full measure of due process, the court may pronounce judgment that the official is removed from office. In addition to the general statutes above, the legislature or the voters by initiative have enacted more specific statutes which proscribe certain conduct and provide for removal from office as a political sanction or describe the proscribed act as a violation of official duty. As a general matter, the more specific statute will control over the more general when the two address the same subject matter. Statutes expressly providing for removal upon conviction are discussed in detail below.
A. An Office Becomes Vacant, ipso facto, Upon the Occurrence of Certain Events Listed in §1770; When Further Inquiry or Analysis is Necessary, the Event is Not Conclusively Established Upon its Occurrence, and Proceeding Under §3060 is Necessary to Establish the Vacancy.
Section 1770 defines a series of conditions or events leading to vacancy in office. Some of these provisions are simply "conditions" resulting in vacancies, such as death of the official, insanity found upon a commission of lunacy issued to determine the fact, resignation, the decision of a competent tribunal declaring void his election or appointment, or, his conviction of a felony. In People ex rel. Fleming v. Shorb, (1893) 100 Cal 537, the court noted: "It is true that the occurrence of some of these events is conclusively established against the incumbent of the office by the finding or judgment of a competent tribunal, namely, his insanity, his removal from office, his conviction of a felony, and the invalidity of his election." Conviction of a felony is an event that conclusively results in removal, whether or not the conviction relates to an official duty. This conclusive treatment of felonies contrasts with statutory and case treatment over the past 160 years for removal of an official for "any offense involving a violation of his official duties". The Fourth District case of Lubin v. Wilson (1991) 232 Cal.App.3d 1422, 1427, seeking a writ of mandate to compel installation of Paul Carpenter, after his federal convictions on racketeering, extortion and conspiracy to a seat on the Board of Equalization, points out that a felony conviction triggers a vacancy, finding it unnecessary to address non-felonious conduct or to interpret "violation of an official duty":
Carpenter argues section 1770, subdivision (h) is ambiguous because it leaves unclear whether the "felony" must involve a violation of "official duties," [and] leaves non-felonious conduct undefined... Here, the literal language of section 1770, subdivision (h) indicates either of two types of conviction trigger vacancy, specifically felony convictions and convictions for offenses involving a violation of official duties. Carpenter's felony conviction for racketeering, extortion and conspiracy falls squarely within the first type. The fact the charges stemmed from activities during Carpenter's senate term does not cloud the statute's applicability. We decline to interpret "violation of official duties" as a scenario not before us. (Emphasis added)
In contrast to a wide range of cases that apply section 1770 (h) to felony convictions, only a single case over the past 160 years (MacPhee v. Board of Police Comm'rs, (1918) 36 Cal. App. 308 (hereafter, "MacPhee") is found involving an official who was removed for a misdemeanor "violation of official duty" under a charter provision comparable to section 1770 (h). Besides the fact that MacPhee involved a charter provision, it is also factually distinct. The reported charge in that case: ...against a police officer was conspiracy to violate section 182 of the Penal Code in that he was charged and convicted with having joined other police officers in a conspiracy with a gang of confidence operators to protect the latter in their criminal activities. Certain specified charges of crimes committed in carrying out the conspiracy were embodied in the complaint filed against MacPhee, illustrative of which was one to the effect that one of the conspirators, named Frank Ross, had fleeced a victim of nine hundred dollars, and that the police officers who were members of the conspiracy blackmailed him of seven hundred dollars of this amount as hush money, and, incidentally, that in the original bargain made by the conspirators the police officers were to have but fifteen per cent of the results of the confidence operations. (Emphasis added)
The Penal Code section 182 conspiracy charges gave clear notice of violations of official duty by alleging specific conduct "injurious to the public health, to public morals, or for the perversion or obstruction of justice or the due administration of the laws". The only other discussion of removal from office under section 1770 (h) for a non-felonious "violation of official duty" is a 1992 Attorney General Opinion (75 Ops. Cal. Atty. Gen. 64; hereafter 1992 AG Opinion). William Bennett, a member of the Board of Equalization (BOE) was charged under Penal Code §72 with 23 counts of filing false claims, with intent to defraud, for travel expenses purportedly incurred in connection with his official duties. Bennett pleaded nolo contendere to a single misdemeanor violation. Thereafter, the Attorney General opined that a Board member thus convicted could not remain in office, having violated the rules set forth by his own agency for travel reimbursements: "[T]he Board has adopted specific procedures for the purpose of reimbursing Board members' legitimate expenses. If a Board member wishes to claim reimbursement for the Board member wishes to claim reimbursement for the payment of expenses, he or she must provide truthful information. Instead, as established by the criminal charge in question, the Board member here submitted a false claim `with intent to defraud'." (Ibid.)
As in MacPhee, the facts underlying the 1992 AG Opinion are distinguishable. Bennett apparently violated travel expense reimbursement policies specifically enumerated and adopted by his agency. His reimbursement request was for travel expenses directly related to the performance of his official duties, and represented to constitute "a true statement of the travel expenses incurred by me in...the service of the State of California and that all items shown were for the official business of the State of California..." His conduct involved specific criminal intent to defraud his agency, by misrepresenting the fact of his travel costs and requesting reimbursement in excess of the amount he was eligible to receive based on policies adopted by the BOE. Mr. Bennett challenged the 1992 AG Opinion and the governor's authority to remove him from the BOE. In proceedings in the Superior Court in San Francisco, (Bennett v. Lungren, 1992; CPF 92 941947), Mr. Bennett sought and was granted a peremptory writ on or about April 17, 1992 to bar his removal from office. The state appealed to the First District (#A058184). Mr. Bennett resigned from the BOE effective December 30, 1992, citing poor health and his recent serious heart surgery. The state's appeal was dismissed on December 23, 1992.9 The predicate to the application of 1770 (h) to both MacPhee and the 1992 AG Opinion (Bennett) was that both directly involved a violation of their official duties. These cases are dwarfed in number by cases in which section 3060 is the established procedure where the statutes do not otherwise expressly provide for removal. Review of 160 years of cases reveals no ipso facto determination of removal upon a violation of official duties, because there is an alternative process widely utilized to make such determination. Section 3060 and its predecessor statutes have been the vehicle to consider removal and concurrently afford due process.
B. Government Code §3060 and Predecessor Statutes Have Defined the Procedure to Determine Removal From Office for Misconduct including a Violation of Official Duty for 160 Years.
"All other civil officers shall be tried, for misdemeanors in office, in such manner as the Legislature may provide"". For more than 160 years, the Legislature has defined the exclusive method to try such misdemeanors in office, a term used to describe a range of misconduct in office, whether or not criminal, including a violation of official duties...