California Advisory Opinions July 14, 1983: AGO 83-406 (July 14, 1983)

Advisory Opinion Text

THE HONORABLE THOMAS D. BOWMAN, COUNTY COUNSEL, COUNTY OF TULARE, has requested an opinion on the following question:

Is the marshal of a municipal court required to be a resident of the judicial district in which the municipal court is located?

CONCLUSION

The marshal of a municipal court is not required to be a resident of the judicial district in which the municipal court is located.

ANALYSIS

Traditionally, local elective public officers have been required to be residents of the particular jurisdictions in which they serve. (64 Ops.Cal.Atty.Gen. 554, 555 (1981); 59 Ops.Cal.Atty.Gen. 136, 140 (1976).) Appointive public officers, on the other hand, are generally treated in California as not being subject to any residency requirements. (See Cal. Const., art. XI, § 10, subd. (b); 64 Ops.Cal.Atty.Gen. 554, supra , 556; 59 Ops.Cal.Atty.Gen. 136, supra , 141.)

The question presented for analysis is whether a marshal of a municipal court must be a resident of the judicial district where his or her services are being performed. We conclude that a marshal may reside outside the judicial district and in fact may live in a county adjoining the county in which the municipal court is located.

Each county in California is divided into judicial districts with "a municipal court in each district of more than 40,000 residents and a justice court in each district of 40,000 residents or less." (Cal. Const., art. VI, § 5, subd. (a).) The Legislature is responsible for prescribing "the number, qualifications, and compensation of judges, officers, and employees" for each municipal court. ( Ibid .; see 56 Ops.Cal.Atty.Gen. 320, 321 (1973).)

A marshal is an "officer" of the municipal court for the judicial district where appointed or elected to serve. (59 Ops.Cal.Atty.Gen. 97, 99-101 (1976); 56 Ops.Cal. Atty.Gen. 320, supra , 323; 56 Ops.Cal.Atty.Gen. 41, 42 (1973); 51 Ops.Cal.Atty.Gen. 28, 29 (1968); 47 Ops.Cal.Atty. Gen. 58, 59 (1966); 42 Ops.Cal.Atty.Gen. 159, 160-164 (1963); 32 Ops.Cal.Atty.Gen. 161, 162 (1958).)

Concerning the qualifications for holding the office of marshal, the Legislature has enacted two relevant statutes dealing with residency. Government Code section 71140 as last amended in 1972 provides in part:

" The judges of a municipal court and the judges, constables, and deputy constables of a justice court shall be residents eligible to vote in the judicial district or city and county in which they are elected or appointed for a period of at least 54 days prior to the date of their election or appointment." (Emphasis added.)

Section 71140.1 states: "The attaches of a municipal court may reside in counties adjoining the county in which they are employed." (Emphasis added.)

Prior to the enactment of section 71140.1, we concluded that the Legislature deliberately excluded municipal court officers from the residency requirements of section 71140 and that such officers were not subject to any residency qualifications for holding office. (21 Ops.Cal.Atty.Gen. 51, 52-53 (1953).)

With regard to the "attache" language of section 71140.1, we note that a marshal is not only an officer but also an attache of a municipal court. (56 Ops.Cal.Atty.Gen. 320, supra , 323; 56 Ops.Cal.Atty.Gen. 41, supra , 42; 47 Ops.Cal.Atty.Gen. 58, supra , 59; 42 Ops.Cal.Atty.Gen. 159, 160 (1963); 32 Ops.Cal.Atty.Gen. 161, 162 (1958).)

Hence, in 1957 when section 71140.1 was enacted, marshals became subject to a residency requirement. The obvious import of section 71140.1 is to allow municipal court attaches to live not only in the judicial district where serving but also anywhere in the county of which the judicial district is a part as well as in any area in an adjoining county. A different construction of the statute would render it absurd or meaningless. "Interpretive constructions which render some words surplusage, defy common sense, or lead to mischief or absurdity, are to be avoided." ( California Mfgrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844.)

The more specific provisions of section 71140.1 control over the general residency requirements of such statutes as section 24001 and Elections Code section 75. (See 28 Ops.Cal.Atty.Gen. 127, 128 (1956); 21 Ops.Cal.Atty.Gen. 51, supra , 52-53; see also Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 788; Governing Board v. Mann (1977) 18 Cal.3d 819, 828; Osborne v. La Font (1976) 60 Cal.3d 875, 876-878; 59 Ops.Cal.Atty.Gen. 627, 627-629 (1976); 58 Ops.Cal.Atty.Gen. 368, 371 (1975).)

Finally, while it may seem incongruous for the Legislature to require residency in the judicial district for constables (§ 71140) but not for marshals (§ 71140.1) since the two have virtually identical functions (59 Ops.Cal.Atty.Gen. 97, supra , 101; 49 Ops.Cal.Atty.Gen. 130, supra , 130-131), one answer may be that a constable holds an elective office ( 71602), while a marshal may be elected (see, e.g., § 74133) or appointed (see, e.g., § 72640) depending upon the particular legislative scheme governing the judicial district.

In answer to the question presented, we conclude that a marshal of a municipal court is not required to be a resident of the judicial district in which the municipal court is located.

---------

Notes:

A marshal performs essentially the same services in a municipal court as a sheriff performs in a superior court and a constable performs in a justice court. (See Gov. Code, §§ 27820, 71264, 71265, 71604; 63 Ops.Cal.Atty.Gen. 357, 357-358 (1980); 59 Ops.Cal.Atty.Gen. 97, supra , 101; 56 Ops.Cal.Atty.Gen. 320, supra , 323; 56 Ops.Cal.Atty.Gen. 41, supra 42; 51 Ops.Cal.Atty.Gen. 28, supra , 28-29; 42 Ops.Cal.Atty.Gen. 159 supra , 161-164; 32 Ops.Cal.Atty.Gen. 161, supra , 162.)  (1976); see 58 Ops.Cal.Atty.Gen. 888, 891 (1975); 47 Ops.Cal.Atty.Gen. 36, 37 (1966); 35 Ops.Cal.Atty.Gen. 198, 200-202 (1960); 25 Ops.Cal.Atty.Gen. 167, 169 (1955).) San Francisco is a "city and county." (§§ 23012, 23138, 23638.)

All subsequent references to the Government Code will be by section number only.

Although section 71140 speaks in terms of eligibility for taking office, the "eligibility requirement persists as a qualification for holding office." (59 Ops.Cal.Atty.Gen. 627, 629

Section 24001 states in part:

"Except as otherwise provided in Sections 27550.1 and 27641.1 of this code or in this section, or in Section 21123 or 34711 of the Water Code, or in any landowner voting district, as defined in subdivision (m) of Section 23503 of the Elections Code, a person is not eligible to a county or district office, unless he or she is a registered voter of the county or district in which the duties of the office are to be exercised at the time that nomination papers are issued to the person or at the time of the person's appointment."

Elections Code section 75 provides:

"Unless otherwise specifically provided, no person is eligible to be elected or appointed to an elective office unless that person is a registered voter and otherwise qualified to vote for that office at the time that nomination papers are issued to the person or at the time of the person's appointment."

---------