People v. Cherry

[1133]Opinion

SCOVILLE, P. J. The People appeal from a judgment dismissing an accusation of willful misconduct in office filed by the grand jury against defendants Joe J. Cherry, Ruth Call Evans and Robert James Elliott, all members of the Board of Trustees of the Orange Unified School District.

The accusation alleged misconduct occurring during defendants’ prior terms of office, 1981-1985. Each of the defendants was reelected or reappointed in lieu of an election in November 1985; the accusation was filed in June 1987 during their present four-year terms of office.

Defendants’ motion to dismiss was based on Thurston v. Clark (1895) 107 Cal. 285, 287-288 [40 P. 435], and its progeny, including People ex rel. Bagshaw v. Thompson (1942) 55 Cal.App.2d 147, 153-154 [130 P.2d 237] and People v. Hale (1965) 232 Cal.App.2d 112, 118 [42 Cal.Rptr. 533]. Under this line of cases it was settled that the statutes (former Pen. Code, § 758 et seq., and Gov. Code, § 3060) requiring a public officer’s removal for misconduct in office should be interpreted to allow removal only during the term of office in which the misconduct occurred. Thus, in People v. Hale the court stated, “A preliminary question, which should be finally disposed of, is whether or not the scope of the accusation must be rigidly restricted to the present term of office [of the defendant] .... The answer is clear; under the law, the alleged offense deals only with the present term of office to which [defendant was elected] . . . ; it cannot be justified by any wrongful or improper act or omission of which he may have been guilty prior to the commencement of his current term. In People v. Thompson, 55 Cal.App.2d 147, at pages 153-154 . . . it is said: ‘One term of an office is separate and distinct from other terms of the same office. A proceeding for the removal of an officer cannot be maintained after the accused has ceased to hold his office, nor for a violation of his duty while serving in another office or in another term of the same office.’ ” (232 Cal.App.2d at p. 118; see also People v. Superior Court (Hanson) (1980) 110 Cal.App.3d 396, 400-401 [168 Cal.Rptr. 21].)

The emphasis in these cases was on the language misconduct in office. Removal statutes, being criminal in nature, were construed strictly, and it was thought that the election process would weed out (or condone) officers alleged to have been guilty of misconduct in a prior term. (See Annot., Removal of Public Officers for Misconduct During Previous Term (1972) 42 A.L.R.3d 691, 696, § 2(a).)