Nutting Appeals Surprise Vacancy decision - Election may end in days [Part 2]
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 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. In Fitch v. Board of Supervisors, (1898) 122 Cal. 285, the Supreme Court described the application of the Act of March 14, 1853, providing for the summary removal of public officials, a statute substantially similar to Penal Code §772: It vvas first decided that neglect of official duty amounted at common law to an impeachable misdemeanor in office, and upon conviction the officer must be removed... `There can be no doubt that the case made by the complaint is one directly within the provisions of the Act of 1853. That Act was designed to afford a remedy of a summary character against officeholders who were guilty of extortion or neglect in the performance of official duty, and the case of Marlcs is brought by the complaint within the latter category...The Act of 1853 does provide how, in what marmer, 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 of the Assembly to prefer, and that of the Senate to try, articles of impeachment under the first clause of the same section. (Fitch v. Board of Supervisors, (1898) 122 Cal. 285, [citing: In re Marks, (1873) 45 Cal. 199])
The manner the Leeislature has provided, in response to this directive, is Govemment Code Section 3060, et seq. for the removal of other civil officers from office. The proceeding is initiated by presentation of a grand jury accusation for willful or corrupt misconduct, including violations of official duty, against a public official. If the defendant denies the matters charged, the accusation is tried before a jury. If he is convicted, the court shall pronounce judgment that the defendant be removed from office. Case law is replete with examples of section 3060 proceedings. Accusations seeking removal where "violation of official duty" was included as part of the accusation or an element of the charge, include In re Curtis, (1895) 113 Cal. 68, "The grand jtuy of the county of Sacramento presented an accusation against the defendant for having, while holding the office of supervisor of that county, corruptly and in violation of his official eltu voted for the payment of a claim against the county; In Siebe v. Superior Court (1895) 114 Cal. 551 speaking of an accusation under Penal Code §772 seeking removal, the court said ". . . unless the accusation charges the officer with a violation of his official duties in respect to one or the other of these particulars, the court has no jurisdiction in the matter.";
In Crossman v. Kenniston (1893) 97 Cal. 379, the plaintiff filed an accusation under Penal Code §772 against the defendant, who was a member of the board of trustees of the city of San Bernardino, charging him with having willfully violated his official duty as a city trustee and asking he be removed; Nonfeasance, or willful neglect of duty by a public officer is a form of misconduct in office [Coffey v. Superior Court (1905) 147 Cal. 525, 529,]; In Fraser v. Alexander (1888) 75 Cal. 147, 148, "This is an action brought by the plaintiff in his individual capacity against the defendant as supervisor of the county of Lake, state of California, to recover one hundred dollars, and to remove the defendant from his office as supervisor for a willfid violation of official dutv." (Emphasis added) Penal Code §772, included a "summary proceeding" initiated by an accusation filed by any person with the superior court, alleging that an officer was guilty of charging illegal fees or had neglected to perform the duties of his office. The matter would be heard and decided by the judge of the superior court; if the judgment was in favor of the accusation, the official would be fined and summarily removed from office. The scope of such proceedings did not extend to the full range of charges for misconduct in office available under the Penal Code equivalent of what is now Government Code §3060. Penal Code §772 was repealed in 1929, and was not incorporated into the Government Code upon adoption in 1943. No comparable statute, broadly applicable to summarily remove public officials has been enacted since. Reported cases over the past 160 years clearly establish section 3060 as the accepted process to remove an official from office for non-felonious violation of official duty or other misconduct in office. See, McKannav v. Horton, (1907) 151 Cal. 711.
An office becomes vacant when the incumbent is convicted of a felony, and also it becomes vacant when he is convicted of any offense -- whether felony or misdemeanor -- if it involves a violation of his official duties. There are felonies which involve no violation of official duty; there are felonies, such as extortion by a public officer, which do involve a violation of official duty; and there are simple violations of official duty which are misdemeanors solely for that reason. Whether a felony does or does not involve a violation of official duty, the indictment will charge the facts constituting the felony... But if the misconduct alleged against a public officer is a misdemeanor only, and only such because it is a violation of official duty, the proceeding against him is under the provisions of chapter 2 of part II of the Penal Code (secs. 758211,) [Now §3060, et seq.]
In the instant case, the Section 3060 removal proceeding is the essential procedural component missing from this case. It is the statutory framework developed by the Legislature to consider the removal of an official for malfeasance, misfeasance, nonfeasance, willful or corrupt misconduct or other acts that might fall within the rubric of "misdemeanor in office". It is the mechanism that DDA Clinchard described as an option under consideration if the verdicts did not result in Supervisor Nutting's automatic removal from office. Here, the State had the option to bring a Section 3060 removal proceeding along with other charges, which would have provided notice that Mr. Nutting's actions allegedly involved violations of official duty and that the state intended to seek his removal from office. In Stark v. Superior Court (2011) 52 Cal. 4th 368, 371, the case proceeded in exactly that manner: ...District Attorney Adams instructed the grand jury on 13 ...
To be continued ...