SUSAN B. ANDERSON, as County Clerk, etc., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent and Real Party in Interest, 11 Cal. 4th 1152

Opinion LUCAS, C. J. California Constitution,

article VI,

section 4, provides: “In each county there is a superior court of one or more judges. The Legislature shall prescribe the number of judges and provide for the officers and employees of each superior court. . . . [¡D The county clerk is ex officio clerk of the superior court in the county.” (See also Gov. Code, § 26800; all further

section references are to this code.) Since 1977,

section 69898, subdivision (d) (section 69898(d)) has authorized superior courts to transfer the duties of superior court clerk to an appointed court executive officer. In Zumwalt v. Superior Court (1989) 49 Cal.3d 167, 179 [260 Cal.Rptr. 545, 776 P.2d 247], we affirmed the constitutionality of

section 69898(d), and held the Legislature may authorize superior courts to assign court-related duties otherwise imposed on the county clerk to a superior court executive officer. The sole question in this matter is whether such a transfer may be made effective before expiration of a county clerk’s elective term. We conclude it may. I.

Section 69898(

d) provides: “Notwithstanding any other provision of law, a superior court having an executive or administrative officer may, by local rule, specify which of the powers, duties and responsibilities required or permitted to be exercised or performed by the county clerk in connection with judicial actions, proceedings and records shall be exercised or performed by the executive or administrative officer.

The county clerk shall be relieved of any obligation imposed on him [or her] by law with respect to these specified powers, duties and responsibilities, to the extent the local rule imposes on the executive or administrative officer the same powers, duties and responsibilities.” Transfer of superior court duties under

section 69898(

d) enhances court efficiency, and is encouraged by

section 68502.5, which directs the Trial Court Budget Commission (ibid.; see also Cal. Rules of Court, rule 1026, as amended eff. Jan. 25, 1995) to provide funding “incentives and rewards” to courts that implement transfer of court clerk duties under

section 69898(d). (§ 68502.5, subd. (a)(4); see also Cal. Standards Jud. Admin., § 29, as amended eff. Jan. 25,1995 [Deering’s Cal. Ann. Codes, Rules (Appen.) Div. I., § 29 (1996 ed.) pp. 2354-2355]; Cal. Rules of Court, rule 991(b) & (c), as amended eff. Jan. 25, 1995.) At least 42 counties have done so. In June 1994, petitioner was reelected Fresno County Clerk for a four-year term commencing January 2, 1995. By all accounts, her performance was and remains excellent. Nevertheless, after her reelection, but more than three months before the start of her second term, the Fresno County Superior Court judges, pursuant to

section 69898(d), adopted local rule 22. The rule imposes the duties of superior court clerk on the court executive officer, and removes those duties—and corresponding employees (comprising about two-thirds of the county clerk’s office)—from the county clerk. The county board of supervisors approved the necessary budget and personnel transfers. The rule was set to take effect December 30, 1994.

In mid-December 1994, petitioner filed this original proceeding in the Court of Appeal, seeking a writ of mandate staying implementation of rule 22 and the county personnel and budget transfers until expiration of her second term. The Court of Appeal issued a temporary stay, and subsequently rendered a decision commanding the superior court to vacate rule 22.

The majority acknowledged that the Legislature has the power to reallocate the superior-court-related duties of the county clerk, but concluded transfer of those duties before expiration of petitioner’s second term of office would unconstitutionally “imping[e] on the electorate’s right to vote.” Accordingly, and in order to avoid “mischief and absurdity,” the majority construed

section 69898(

d) to permit transfer only after expiration of petitioner’s second term. II. We have addressed the “timing” question posed here in only two cases, both antique. As the Court of Appeal acknowledged, the first decision, Attorney-General v. Squires (1859) 14 Cal. 12 (Squires), supports respondent superior court. In 1857, P.S. Mulford was elected to a two-year term as Sheriff of Calaveras County.

At the time of election, the Calaveras Sheriff served also as “ex officio Collector of foreign miners’ tax or license.” (Squires, supra, 14 Cal. at p. 16.) Effective March 1859—i.e., 10 months before expiration of Mulford’s term—the Legislature stripped him of authority and duty to license foreign miners, and directed the county board of supervisors to appoint others to discharge that duty. (Id. at p. 15.) Mulford objected to the diminution of his duty and authority during his term of office.

We framed the issue as follows: “Is it competent for the Legislature, having vested certain duties in a public officer, for the discharge of which he has given bond, and for whose services compensation is allowed, to take those duties and the fees from the office before the expiration of the term, and confer them on another officer?” (Squires, supra, 14 Cal. at p. 15.) We noted that, under the Constitution, “Assessors and Collectors of town, county, and State taxes” were to be “elected by the qualified electors of the district, county, or town, in which the property taxed ... is situated.” (Cal.

Const, of 1849, art.

XI, § 13, italics added.) We questioned, however, whether the duty removed from Sheriff Mulford—licensing of foreign miners—was a “necessary appendage of the office of Tax Collector . . . .” (Squires, supra, 14 Cal. at p. 16.) We ultimately answered that question in the negative, concluding the duty to license foreign miners, unlike the duty to collect taxes on land or personal property, was delegable to “other persons than Tax Collectors,” and that the Legislature’s midterm transfer of licensing duty to appointees of the county board of supervisors did not violate the constitutional requirement that “Tax Collectors” be elected. (Id. at pp. 17-18.) Squires, supra, 14 Cal. 12, thus stands for the proposition that the Legislature may, during a term of elective office, enact a statute transferring a duty of that office midterm to an appointee, so long as the transferred duty is outside the class of matters that may be performed only by one elected to perform them—i.e., so long as the duty is assignable to an appointee in the first instance.

Because the court found the duty to license foreign miners was a duty that could be assigned to appointed officials in the first instance, it approved transfer of that duty from the elected sheriff to an appointed officer. In the second case addressing the issue raised here, People v. Kelsey (1868) 34 Cal. 470 (Kelsey), this court, without citing Squires, supra, 14 Cal. 12, held invalid a county’s attempt to transfer the entire office of tax collector from the elected Sheriff of San Joaquin County to the elected treasurer of that county.

Petitioner asserts, and the Court of Appeal majority below agreed, that in doing so Kelsey “overrule[d], by implication, the holding of Squires as to the timing of the transfer of duties.” But as will appear below, Kelsey is consistent with Squires, and distinguishable from the present case. In September 1865, C. C. Rynerson was elected to a two-year term as sheriff.

At that time, a statute imposed on the sheriff “the duties of Tax Collector of the county.” (Kelsey, supra, 34 Cal. at pp. 472-473.) Thereafter, another statute enacted April 1866 and effective March 1867, transferred the office of “ex officio tax collector” from the county sheriff to the county treasurer. (Kelsey, supra, 34 Cal. at p. 473.) We held the Legislature lacked power to “confer[] the duties of Tax Collector on any other county officer or person not elected to the office by the electors of the county.” (Id. at p. 475, italics added.) As in Squires, supra, 14 Cal. 12, we began our analysis with

article XI,

section 13, of the 1849 California Constitution, which, as noted above, required that tax collectors be elected. We found this provision “restricts the power of the Legislature to a particular mode of providing . . .

Collectors of town, county and State taxes in the first instance ....[<][] Unquestionably the Legislature may by law provide that the County Treasurer, Sheriff or any other county officer shall perform the duties of Tax Collector; but the law devolving such ex officio duty upon any county officer, must precede the election of such officer, so that the electors of the county may have an opportunity under the law of selecting the person or officer charged with the duties of Tax Collector.” (Kelsey, supra, 34 Cal. at p. 475.) We held the statute unconstitutional “so far as [it] assumes to transfer the duties of the office of Tax Collector from the Sheriff, an officer elected in contemplation of performing the duties of Tax Collector, to the Treasurer, an officer not selected by the electors of the county as Tax Collector . . . .” (Id. at p. 476; see also Christy v.

B. S. Sacramento Co. (1870) 39 Cal. 3, 11.) Thereafter, in Mills v.

Sargent (1868) 36 Cal. 379 (Mills), which involved the successors in office to the parties in Kelsey, supra, 34 Cal. 470, we described Kelsey as follows: “[W]e held, that, under the Constitution which required a Tax Collector to be elected, as such, by the people, it was incompetent for the Legislature, after a Tax Collector had been elected for a term by the people, to transfer the office from the party so elected with a view to that office, to another party who was not elected with any view to a discharge of so important duties.” (Mills, supra, 36 Cal. 379, 382, italics added.) Contrary to the dissenting opinion, nothing in Mills, supra, suggests that Kelsey, supra, turned on the broad proposition that “duties [may not be] taken away from someone whom the electorate had chosen to perform them, thereby nullifying the voters’ choice.” (Dis. opn. of Kennard, J., post, at p. 1168, italics added.) Indeed, Mills clearly reemphasizes the sole and narrow reason why Kelsey invalidated the transfer: Under the Constitution, the particular transferred duty at issue could be performed only by one elected to do so.

Kelsey, supra, 34 Cal. 470, is not inconsistent with Squires, supra, 14 Cal. 12, and, in fact, the two cases are harmonious. As noted above, in Squires, supra, we permitted transfer, during the county sheriff’s term of office, of the duty to license foreign miners.

We reasoned that the transfer was proper because it did not involve delegation of the “necessary duties of the Tax Collector—as [would collection of] a tax on land or personal property.” (Squires, supra, 14 Cal. at p. 18.) By contrast, in Kelsey, supra, 34 Cal. 470, the Legislature attempted to transfer the “necessary duties” of tax collector —the entire office—from one person who was elected “in contemplation” of performing such duties, to another officer whom the voters did not contemplate would fill the office of tax collector.

Accordingly, the purported transfer in Kelsey, supra, was illegal, because, unlike Squires, supra, 14 Cal. 12, it violated the constitutional provision (Cal. Const, of 1849, art. XI, § 13) requiring election of tax collectors. Nothing in Kelsey, supra, 34 Cal. 470, suggests a midterm transfer would be illegal if the transferred duties are outside the class of matters that may be performed only by one elected to do so, and are instead within the class of matters that may be assigned in the first instance to an appointee—as was the case in Squires, supra, 14 Cal. 12.

Kelsey, supra, 34 Cal. 470, was followed in two early Court of Appeal opinions, and one leading Attorney General opinion. In People v. Gunn (1916) 30 Cal.App. 114 [157 P. 619] (Gunn), a county attempted to transfer the duties of auditor midterm to a person not elected to perform those duties. The county endeavored unsuccessfully to distinguish Kelsey, supra, 34 Cal. 470, on the ground that unlike in Kelsey, the office of auditor was made elective by the Legislature, rather than by the Constitution.

The court noted that the Constitution allowed the Legislature to determine whether auditors shall be elected or appointed, and “the Legislature having acted, the mode so provided and so determined by the Legislature becomes for the time being the only mode of selection.

The principle of the Kelsey case, it seems to us, governs here. . . .” (Gunn, supra, 30 Cal.App. at p. 120.) Accordingly, because “the only mode provided by law to select an auditor is by election by the people” (ibid.), the Gunn court concluded Kelsey precluded midterm transfer of the auditor’s duties to an official not elected to perform those duties. (30 Cal.App. at pp. 120-121.) In Kelly v. Kane (1939) 34 Cal.App.2d 588, 591 [94 P.2d 384] (Kane), a county transferred the duties of purchasing agent midterm from appointee Kelly to another appointee.

Kelly asserted unsuccessfully that the transfer was illegal under Kelsey, supra, 34 Cal. 470.

The Kane court construed Kelsey, supra, 34 Cal. 470, as establishing the following propositions: when the transferred duty is one that may be performed only by a person elected to do so, the transfer may take effect only at the end of the elective term; but when a duty is properly assignable in the first instance to an appointee, the transfer may take effect during an elective term. (34 Cal.App.2d at p. 591.) Because the transferred duty (of purchasing agent) in Kane was assignable in the first instance to an appointee, the Kane court held the duty could be transferred midterm from an appointee to another officeholder not elected to perform those duties.

Finally, in Opinion No. 53-82, 22 Ops.Cal.Atty.Gen. 177,179-182 (1953), the Attorney General advised that the duties of ex officio clerk of the board of supervisors—again, duties properly assignable in the first instance to an appointee—could be transferred midterm from the elected county clerk to an appointee of the board.

After a thorough analysis of Kelsey, supra, 34 Cal. 470, and Gunn, supra, 30 Cal.App. 114, the Attorney General explained that “the principle of the Gunn and Kelsey cases [did] not apply” because “the ex officio office, which was attached to that of the County Clerk at the time of his election, was not an elective one. (Opn. 53-82, 22 Ops.Cal.Atty.Gen., supra, 111, 178-179.) Where the office which the elected officer holds ex officio is not an elective one, the legislative body . . . may segregate it during the current term and appoint another person to fill it.

The segregation of the ex officio office in such a case does not deprive the voters of any franchise, which they might otherwise have, to choose the person to fill the ex officio office.” (Opn. 53-82, 22 Ops.Cal.Atty.Gen., supra, 111, 181.) The Attorney General then quoted extensively from Kane, supra, 34 Cal.App.2d at page 591, and concluded that under Kane, transfer was proper because the duty that was transferred from the elected county clerk was a duty that was properly assignable to an appointed official in the first instance. (Opn. 53-82, 22 Ops.Cal.Atty.Gen., supra, 111, 181-182.) The dissenting opinion labels Kane, supra, 34 Cal.App.2d 588, “not relevant” because in that case the duty was transferred from an officer who had been appointed rather than elected. (Dis. opn. of Kennard, J., post, p. 1169.) As explained above, this does not distinguish Kane, and it likewise provides the dissenting opinion with no valid basis for rejecting Opinion 53-82, 22 Ops.Cal.Atty.Gen., supra, 111.

Clearly, both Kane, supra, and Opinion 53-82, supra, are incompatible with the dissenting opinion’s novel and overbroad

interpretation of Kelsey, supra, 34 Cal. 470. As in Squires, supra, 14 Cal. 12, and Kelsey, supra, 34 Cal. 470, the focus in Gunn, supra, 30 Cal.App. 114, Kane, supra, 34 Cal.App.2d 588, and Opinion 53-82, 22 Ops.Cal.Atty.Gen., supra, 111, was on the duties sought to be transferred. The controlling factor in each matter was whether the transferred duty was one that could be performed only by a person elected to do so, or whether it was properly assignable in the first instance to an appointee.

Because the duties of tax collection and auditing could be performed only by one elected to undertake those duties, any midterm attempt to transfer those duties to one not elected to undertake them was invalid. (Kelsey, supra, 34 Cal. 470, 475; Gunn, supra, 30 Cal.App. 114, 120-121.) By contrast, the duties of purchasing agent and clerk of the board of supervisors, were not duties that could be performed only by one elected to do so, but were instead duties properly assignable in the first instance to appointed officers.

Accordingly, those duties were properly transferred midterm to an appointee. (Kane, supra, 34 Cal.App.2d 588, 591; Opn. 53-82, 22 Ops.Cal.Atty.Gen., supra, 111, 180-181.) As the Court of Appeal majority, petitioner, and the dissent herein all acknowledge, the duties of superior court clerk fall into the latter category. No provision of law requires that the person assigned the duties of superior court clerk be elected to perform those duties. It follows that the duties of superior court clerk may be transferred under local rule 22 to another county officer before expiration of petitioner’s term.

Petitioner and the dissent herein rely on Beck v.

County of Santa Clara (1988) 204 Cal.App.3d 789 [251 Cal.Rptr. 444] (Beck) for the proposition that Kelsey, supra, 34 Cal. 470, “protects ... the voters’ exercise of power at the election,” and that “once the electorate has voted for a public officer, having in mind that he will perform a particular bundle of duties, then it would impermissibly negate that exercise of elective choice to take those duties from the official and give them to one not elected to perform them.” (Beck, supra, 204 Cal.App.3d at p. 794.) This statement is dictum, because, as the Beck court conceded, the voters ratified the challenged transfer of duties in that case. (Id. at p. 795.) Moreover, Beck's broad dictum mischaracterizes Kelsey, supra, which, as noted above, does not bar midterm transfer of duties that are properly assignable in the first instance to an appointee.

There is no authority for the broad proposition that duties assigned at election to any given office are unalterably vested in that elected official until the expiration of his or her term. Although

section 69898(d) (quoted ante, at pp. 1154-1155) does not, on its face, bar transfer of duty before expiration of an elected county clerk’s term, the Court of Appeal majority nevertheless found the statute “ambiguous” and “uncertain” in that regard. It concluded that interpreting the

section to apply midterm would violate the electorate’s constitutional right to vote, and produce absurd results. Accordingly, the Court of Appeal majority construed (and the dissent herein would likewise construe)

section 69898(d) “to mean the superior court may not terminate the county clerk’s position as ex officio clerk of the superior court during the county clerk’s term of office.” Indeed, petitioner would construe the

section to permit termination of her ex officio duties only if the transfer were announced before she filed her declaration of candidacy for office—in other words, 113 days before the date of petitioner’s election. As an initial matter, we reject the premise that

section 69898 is ambiguous and needs judicial construction. Unlike the cases discussed, ante, at pages 1155-1160, in which both authorizing and implementing transfer legislation was enacted during the elected officer’s term, here, as noted above,

section 69898(

d) had, for over 17 years before petitioner’s reelection, expressly authorized transfer of superior court clerk duties from the county clerk to an appointed court officer. As Justice Martin, dissenting below, observed, “the Legislature, contrary to the majority’s surmise, did consider the question before us and so framed

section 69898[(d)] as to provide that the statute’s provisions could be exercised by any superior court in this state at any time from and after the commencement by any county clerk of a new term beginning after January 1,1977. Each county clerk would have run for and, if successful, taken office with actual or constructive notice of the provisions of

section 69898 and its possible effect upon them during their term of office, as would each voter who, like county clerks and all the rest of us, are presumed to know the law” (Italics added.) In any event, for the reasons set out, ante, at pages 1155-1160, the Court of Appeal majority’s constitutional analysis (and that of the dissenting opinion herein) is incorrect. No infringement of the electorate’s franchise occurred here (and, contrary to the dissent, post, at pages 1165-1166,

section 69898 does not implicate the electorate’s right to vote) because, quite simply, the voters have no right to elect the official who will perform the duties of clerk of the superior court. As noted above, California Constitution,

article VI,

section 4, gives to the Legislature authority to determine who will carry out the functions of court clerk. No provision of law requires the official who performs those duties to be elected. The electorate’s right to vote for county clerk does not negate the Legislature’s power to transfer from the county clerk duties that may be assigned to appointed officers in the first instance. Nor will

section 69898(

d) lead to absurd results unless given a more restrictive

interpretation. The Court of Appeal majority, noting that under the county charter, petitioner’s salary cannot be lowered to reflect the reduction of her duties, surmised petitioner’s retention of full salary would produce waste that could not have been contemplated by the Legislature. We do not reach the same conclusion. First, the Legislature might have assumed that not all counties’ governing provisions would preclude reduction of the county clerk’s salary under such circumstances.

Moreover, the Legislature could assume that when reduction of salary is foreclosed, a county might be able to shift replacement responsibilities to the county clerk, commensurate with his or her salary. Indeed, at oral argument, counsel for respondent asserted the county will do just that.

Finally, as noted above, the Legislature could properly assume that any short-term financial loss to the county would be justified by increased efficiency and enhanced opportunity for securing funding from the Trial Court Budget Commission. (See ante, at p. 1155.) We find nothing to support the Court of Appeal majority’s conclusion that

section 69898(

d) must be construed to preclude midterm transfer of superior court clerk duties from the county clerk to an appointed court officer. III. Under

section 26529, county counsel must defend or prosecute all civil actions in which the county or any of its officers is a party “in his or her official capacity.” County counsel declined to prosecute petitioner’s suit because of a conflict: he had earlier advised the board of supervisors that the challenged transfer of duties would be legal. The Court of Appeal unanimously held that despite the outcome of the suit, petitioner was entitled to attorney fees under

section 26529. Respondent asserts this was error. It would appear, however, that only the County of Fresno, and not respondent court, has standing to raise this issue. The county was a party below but did not petition for review, and is not before us in this proceeding. In any event, were the issue properly before us, we would not disturb this aspect of the judgment. When petitioner was elected county clerk, she was obligated to act as ex officio clerk of the superior court. In seeking to retain those duties, she sued in her official capacity, and is entitled to reimbursement under

section 26529. We reverse the judgment of the Court of Appeal, and deny petitioner’s request for a writ of mandate. Petitioner shall be allowed to recover reasonable attorney fees, and her costs of suit. Arabian, J., Baxter, J., George, J., and Werdegar, J., concurred.