California Attorney General Opinion No. 81-612

________________________________________________________________________ TO BE FILED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General : OPINION : No. 81-612 : of : NOVEMBER 10, 1981 : GEORGE DEUKMEJIAN : Attorney General : : Clayton P. Roche : Deputy Attorney General : : THE HONORABLE CHRISTOPHER G. MONEY, DISTRICT ATTORNEY, SAN LUIS OBISPO COUNTY, has requested an opinion on a question we have phrased as follows: As between the district attorney and the county counsel, which officer has the primary responsibility for the collection of fines which have been imposed for violation of the Penal Code where no probation has been granted? CONCLUSION As between the district attorney and the county counsel, the district attorney has the primary responsibility for the collection of fines which have been imposed for violation of the Penal Code where no probation has been granted. 1 81-612 ANALYSIS This request for our opinion arises from the rather unique situation which has existed in San Luis Obispo County with respect to the Diablo Canyon nuclear power plant and the attendant protests regarding such facility. Large numbers of defendants have been convicted of violating either Penal Code section 409 (failure to leave scene of riot or unlawful assembly) or Penal Code section 602 (trespass). The court has imposed a fine with no probation having been imposed. Penal Code section 1206 provides that a fine in a criminal action constitutes a lien in like manner as a judgment for money rendered in a civil action,” and Penal Code section 1214 provides that “execution may be issued thereon as on a judgment in a civil action.” Apparently, the transient character of the defendants has left a large sum of such fines unpaid and their collection difficult. We are presented with the question, as between the district attorney and the county counsel, which officer has the primary responsibility to collect such fines. The opinion request essentially asks us to review our opinion in 56 Ops. Cal. Atty. Gen. 53 (1973) in light of the decision of the California Supreme Court in Safer v. Superior Court (1975) 15 Cal. 3d 230.1 In 56 Ops. Cal. Atty. Gen. 53, supra, we concluded that the district attorney, as opposed to the county counsel, has the primary duty of collecting a fine which had been imposed in a civil contempt proceeding, but that pursuant to section 27647 of the Government Code2 the county counsel could still do so if requested by the court. In so concluding we reexamined the interrelationship between the duties of a district attorney set 1This office conducted a survey of the county counsels of counties which have both a district attorney and a county counsel as to which officer collects such fines in their county, or in the alternative, that the problem has not arisen in their county. Of the approximately three dozen responses we received, the problem appears not to have arisen in the vast majority of counties. The reason in about a half dozen counties is that the court clerk or some other officer or unit such as the probation department has been assigned to such collection duties. Of the approximately one dozen counties which offered information with respect to which officer collects such fines, the response was about evenly divided. However, where the county counsel was designated, it was usually in the role of assisting the court clerk or other officer in their collection efforts. This opinion is not intended to require any county to change procedures which it has developed and finds satisfactory. It addresses the primary concern of the requester when an impasse arises between the district attorney and the county counsel. With respect to the ability of the court itself to impose imprisonment upon the default in payment of a fine, see Penal Code section 1205 and 63 Ops. Cal. Atty. Gen. 418 (1980). 2All further section references are to the Government Code unless otherwise indicated. Section 27647 of that code is contained in the sections prescribing the duties of the county counsel, and requires the county counsel to represent courts and judges in their official capacity. 2 81-612 forth in section 26500 et seq. and the duties of a county counsel set forth in section 27640 et seq. We reasoned from the statutes and prior opinions of our office as follows: “The duties of a district attorney are set forth in sections 26500 through 26543. The duties of a county counsel are set forth in section 26529 and 27640 through 27647. “Section 27642 provides that ‘Whenever the board of supervisors appoints a county counsel . . . he shall discharge all the duties vested by law in the district attorney other than those of a public prosecutor.’ As explained in greater detail in 38 Ops. Cal. Atty. Gen. 121, 122, note 2 (1961), despite this apparent all encompassing directive an apparent inconsistency appears in section 26529. Section 26529 provides that ‘In counties which have a county counsel, the county counsel shall discharge all the duties vested in the district attorney by Sections 26520, 26522, 26523 and 26524. . . .’ However, duties of the district attorney other than those of public prosecutor are found in each and every section from section 26520 through 26528 inclusive. Directly pertinent to our inquiry herein is section 26521, a nonprosecutorial duty which is not specifically assigned to the county counsel, and which provides: ‘The district attorney shall . . . prosecute all recognizances forfeited in the courts of record and all actions for the recovery of debts, fines, penalties, and forfeitures accruing to the State or his county.’ (Emphasis added.) Under a literal reading of section 27642, supra, it would be the duty of the county counsel to prosecute the collection of fines. However, under a literal reading of section 26529, supra, which provides that ‘. . . The county counsel shall discharge all the duties vested in the district attorney by sections 26520, 26522, 26523 and 26524 . . .’ the duty would repose in the district attorney. “This anomaly was explained in 38 Ops. Cal. Atty. Gen. 121, 122, note 2 (1961) supra, as follows: . . . The amendment in 1951 of the comparable section 26529 (which formerly provided that “county counsel shall discharge all the civil duties vested by law in the district attorney” [Stats. 1947, ch. 424, p. 1140]), to provide in part that “in counties which have a county counsel, the county counsel shall discharge all the duties vested in the district attorney by sections 26520, 26522, 26523 and 26524” (Stats. 1951, ch. 970, p. 2592) 3 81-612 (italics added), limited somewhat the earlier scope of section 27642. Now it would seem no longer mandatory that the non-prosecutory duties under section 26521, 26526, and 26528 be performed by the county counsel. The amendment does not, however, go so far as to preclude the county counsel from performing such duties when not connected with criminal law enforcement. We further stated that ‘ . . . actions for “debts, fines, penalties and forfeitures” (Gov. Code § 26521), which are related to criminal law enforcement (e.g., People v. DePelanconi, 63 Cal. 409 [suit on bail bond]) are the primary responsibility of the district attorney (see § 26529; n. 2, supra).’ Id. at 123. “It is also to be noted that after the 1951 amendment to section 26529, after enumerating the four code provisions above, the section provided as it now does that ‘The county counsel shall defend or prosecute all civil actions and proceedings in which the county or any of its officers is concerned or is a party. . . .’ (Emphasis added.) “Thus, (1) even where a county counsel has been appointed, the district attorney may collect fines under section 26521, (2) the district attorney has the primary responsibility to do so if in aid or furtherance of the criminal law, and (3) the county counsel is understandably oriented to civil actions and proceedings in which the county or its officers are interested as his primary responsibilities vis-a-vis the district attorney where an overlap exists.” (Id., at pp. 54–55, emphasis added.) We then concluded that a contempt proceeding arising from an injunction action was essentially a criminal proceeding, and accordingly was more properly to be brought by the district attorney Application of the reasoning quoted above from our 1973 opinion would require the conclusion that, as between the district attorney and the county counsel, the district attorney has the primary responsibility for collecting unpaid fines which have been assessed where defendants have been convicted of violation of section 409 or 602 of the Penal Code. Accordingly, it would be that reasoning which must be examined in light of the subsequent decision of the California Supreme Court in Safer v. Superior Court, supra, 15 Cal. 3d 230.3 3Therefore, we need not embark upon nor attempt an analysis of the viability of our conclusion in 56 Ops. Cal. Atty. Gen. 53, supra, in light of the Safer case that a contempt proceeding brought in a civil action for injunction is criminal in nature; that, therefore, proceedings to collect a fine imposed for contempt would 4 81-612 We now proceed to Safer v. Superior Court, supra, 15 Cal. 3d 230. That case did not involve a district attorney who sought to collect fines for civil or criminal contempt, or any other type of fine or penalty. It merely involved a district attorney who interjected himself into a civil case involving a farm labor dispute by instituting civil contempt proceedings on his own initiative. The court examined all the statutory duties of the district attorney and failed to find any statutory authority for such intervention or action by him. The court then concluded that “[n]either the Legislature nor our courts, then, have authorized the district attorney’s participation in this case” (id. at p. 242) and accordingly held the trial court was without jurisdiction to permit the district attorney to proceed, and that prohibition was the proper remedy in the case. In Safer, the district attorney apparently sought to rely upon the opinion of this office in 56 Ops. Cal. Atty. Gen. 53, supra, with respect to the collection of a fine in a civil contempt proceeding. The court merely pointed out that such opinion of our office was inapposite. The court thus stated in footnote 20: “20An opinion of the Attorney General (56 Ops. Cal. Atty. Gen. 53 (1973)) dealing with the duties of the county counsel and district attorney to collect a fine imposed in punishment of contempt lends no support to the position of the district attorney. The question in that opinion concerned the collection of a fine already imposed; nothing suggests that either public officer possesses the power to prosecute the underlying private action. Moreover, even the power to collect the fine stemmed from a specific statutory authorization. (Gov. Code, § 26521.) The only question was the effect of a subsequent legislative modification of this express authority.” Thus, the court in Safer v. Superior Court, supra, 15 Cal. 3d 230 did not rule upon whether the district attorney or county counsel has the primary duty to collect a fine in a civil contempt proceeding or a fine or penalty in any type of a proceeding. It in no way purported to overrule or disapprove of our 1973 opinion. It demonstrated through the above quoted language that our opinion involved entirely different questions than presented to it in Safer, which in our Opinion were the allocation of admitted statutory duties as between the district attorney and the county counsel. The only possible language that we can discern in the Safer case from which one might argue that the reasoning in 56 Ops. Cal. Atty. Gen. 53, supra, was erroneous is the dictum of the court in Safer found at 15 Cal. 3d, at pages 236–237 and note 10. The be in aid and furtherance of the criminal law. The first premise or conclusion is immaterial to our consideration herein. 5 81-612 court after discussing certain statutory duties of the district attorney stated: “Even in some of these specifically authorized matters, moreover, the district attorney enjoys neither plenary power nor unbridled discretion. Thus he may prosecute certain actions only upon the request of a designated supervisory body. In counties which employ a county counsel, the statutes provide that his very presence deprives the district attorney of the power to perform certain duties.10 We find, then, that the Legislature’s narrow enumeration of the types of civil cases in which the district attorney may participate expresses its general mandate that public officers not use their funds and powers to intervene in private litigation.” (Footnote 9 omitted.) And in footnote 10, the court stated: “10Government Code section 26529 specifically provides that in counties which employ county counsel a district attorney may not render an opinion to county officers (Gov. Code, § 26520), test the validity of laws providing for the payment of county funds (Gov. Code, § 26523), render school bond assistance (Gov. Code, § 26522), or represent a fudge or court in its official capacity as a defendant (Gov. Code, § 26524). More generally, Government Code section 26529 provides that ‘county counsel shall defend or prosecute all civil actions in which the county is concerned. . . .’ (Italics added.) In construing this statute we start with the obvious proposition that county legal officers may become involved in litigation only if the county or public interest is involved; the quoted statute divides the litigative authority between the two county officers responsible for it, specifying that county counsel shall handle all civil matters. Thus even if one conceded the propriety of any public participation in this case, the statutes of this state provide that the county counsel shall bring this civil action. As we shall show, however, the defects in this action run deeper than the mere need for the substitution of county counsel.” In our view, the foregoing general dictum in no way purported to deal with or rule upon the question whether the district attorney or the county counsel has the primary responsibility to prosecute actions or other matters which are in aid of or auxiliary to the criminal laws, though perhaps civil in nature. If it did, then it overruled sub silentio its own decision in Board of Supervisors v. Simpson (1951) 36 Cal. 2d 671 which held that the district attorney and not the county counsel has the responsibility to bring “civil” red light abatement actions, because such actions are “. . . [i]n aid and auxiliary to the enforcement of the criminal law. . . .” (Id., at p. 674, See also, 28 Ops. Cal. Atty. Gen. 239 (1956) and 6 81-612 8 Ops. Cal. Atty. Gen. 110 (1946).) Such, in our view would read too much into the very dictum of the court. In fact, the court in Simpson analogized to the district attorney’s duty to collect fines, penalties and forfeitures in reaching its determination in the Simpson case. The court stated: “. . . The Government Code, in speaking of the duties of the district attorney, states that he is ‘the public prosecutor and must conduct on behalf of the people all prosecutions for public offenses and prosecute actions for the recovery of fines, penalties, and forfeitures’ accruing to the state or his county. (Gov. Code, §§ 26500–26502, 26521.) Proceedings under the Red Light Abatement Act are somewhat in the nature of actions to recover penalties or forfeitures, for thereunder the fixtures and paraphernalia in the place abated are partially forfeited and the place may be closed, to use for any purpose for a year. (Stats. 1913, p. 20, § 7.) [4] It is penal in nature. . . .” Furthermore, it is to be recalled that sections 1206 and 1214 of the Penal Code, quoted at the outset, do not provide that proceedings to enforce a judgment imposing a fine in a criminal case are civil actions or proceedings. Those sections merely provide that such a fine is a lien “in a like manner” as a civil judgment and execution may issue “as on” a civil judgment. In short, the judgment that a fine shall be paid is still a judgment in a criminal proceeding although equivalent collection procedures are provided. (See People v. Sutter Street Ry. Co. (1900) 129 Cal. 545, 549, interest does not accrue on fine in criminal or quasi-criminal actions, it could easily have added section 26521 to the section 26529 enumeration. As noted by the court in Henderson v. Board of Education (1978) 78 Cal. App. 3d 875, 883: Finally, it is to be noted that since our opinion was issued in 56 Ops. Cal. Atty. Gen. 53, supra, in 1973, the Legislature has amended the key section, section 26529, by adding section 26526 to the enumeration of the sections imposing specific non prosecutorial duties of the district attorney upon the county counsel. (Stats. 1980, ch. 842, § 2.) Had the Legislature believed that the conclusion or approach of our 1973 and prior opinions in this area was in error as to which officer should collect fines or penalties in criminal or quasi-criminal actions, it could easily have added section 26521 to the section 26529 enumeration. As noted by the court in Henderson v. Board of Education (1978) 78 Cal. App. 3d 875, 883: “. . . True the opinions of the Attorney General are not binding on the courts but in the absence of controlling authority we deem the rationale thereof persuasive since the Legislature it presumed to be cognizant of that construction of the statute . . .” (Emphasis added.) 7 81-612 Accordingly, it is concluded that Safer v. Superior Court, supra, 15 Cal.3d 230 does not require that we disapprove our prior analysis as found in 56 Ops. Cal. Atty. Gen. 53, supra. Based upon such analysis it is concluded that, as between the district attorney and the county counsel, the district attorney has the primary duty to collect unpaid fines which have been imposed for violation of Penal Code provisions such as sections 409 and 602 thereof. It is further concluded, however, that this does not preclude the county counsel from collecting such fines at the request of the court or judges thereof under the provisions of section 27647 (see note 2, supra). ***** 8 81-612