California Advisory Opinions April 10, 1984: Ca. Att. Gen Opinion 83-1203

Advisory Opinion Text

TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHN K. VAN DE KAMP Attorney General

OPINION
of
JOHN K. VAN DE KAMP Attorney General
CLAYTON P. ROCHE Deputy Attorney General

THE HONORABLE H. L. RICHARDSON, MEMBER OF THE CALIFORNIA SENATE, has requested an opinion on the following question:

Does article VI, section 17, of the California Constitution prohibit a supreme court justice who resigns from that office before the expiration of his or her term from accepting a public teaching position before the expiration of such term?

Article VI, section 17, of the California Constitution does prohibit a supreme court justice who resigns from that office before the expiration of his or her term from accepting a public teaching position before the expiration of such term.

Article VI, section 17, of the California Constitution provides:

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"A judge of a court of record may not practice law and during the term for which the judge was selected is ineligible for public employment or public office other than judicial employment or judicial office. A judge of the superior or municipal court may, however, become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy. Acceptance of the public office is a resignation from the office of judge.

"A judicial officer may not receive fines or fees for personal use."

The question presented is whether this constitutional provision prohibits a supreme court justice who resigns before the expiration of the term for which he or she "was selected" from accepting a public teaching position before the expiration of such term.

In 66 Ops.Cal.Atty.Gen. 440 (1983) this office was presented with the same question, except that opinion involved a superior court judge instead of a supreme court justice. We concluded that the basic prohibition contained in the first sentence of article VI, section 17, is clear and unambiguous and should be applied according to its literal wording. Accordingly, we concluded that a superior court judge could not resign from office and accept a public teaching position during the term for which he had been elected.

It is to be noted that the basic prohibition of article VI, section 17, as to accepting other nonjudicial office or employment during the term for which selected applies to "[a] judge of a court of record." Article VI, section 1, of the California Constitution provides:

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"The judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, municipal courts, and justice courts. All except justice courts are courts of record ." (Emphasis added.)

Thus both supreme court justices and superior court judges are judges of courts of record. Accordingly, our conclusion in 66 Ops.Cal.Atty.Gen. 440, supra , as to a superior court judge is as equally applicable to a supreme court justice. We so conclude. Reference is made to that opinion for a complete analysis of the question.

It has been suggested that our conclusion with respect to judges resigning and accepting public teaching positions has serious adverse consequences on public law schools and their students. In short, it is suggested that our conclusion is bad policy.

With respect to this suggestion, we believe that the policy decision has been made by the clear terms of article VI, section 17. Additionally, as discussed in 66 Ops.Cal.Atty.Gen. 440, supra , this constitutional provision was amended in 1966 as part of the work of the Constitutional Revision Commission. Accordingly, it cannot be urged that the provision is an anachronism attributable to the drafters of the original Constitution of 1879. If the people believe that an application of the Constitution according to its clear terms leads to bad policy in certain situations, the people are free to amend the Constitution to correct such situations either upon their own initiative or upon legislative proposal. (See Cal. Const., art. XVIII.)

In sum, it is concluded that article VI, section 17, of the California Constitution does prohibit a supreme court justice who resigns from that office during the term for which he or she was selected from accepting a public teaching position before the expiration of such term.