Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-1210
of :
: June 2, 1998
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY Da VIGO :
Deputy Attorney :
General
:
______________________________________________________________________
THE HONORABLE BERNIE RICHTER, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following question:
Is a county required to provide indemnification and defense for grand jurors sued for
statements made within the scope of their reporting duties that are contained in a final grand jury
report?
CONCLUSION
A county is required to provide indemnification and defense for grand jurors sued for
statements made within the scope of their reporting duties that are contained in a final grand jury
report.
ANALYSIS
An action at law for civil liability against an officer or employee of a public entity,
including a county, is controlled by the provisions of the California Tort Claims Act (Gov. Code,
§§ 810-996.6; "Act"). Footnote No. 1 The Act prescribes the substantive liabilities and immunities
of (§§ 810-895.8), the procedures for initiating claims against (§§ 900-935.6), and the
entitlement to defense of (§§ 995-996.6) Footnote No. 2 and indemnification for (§§ 825-825.6)
public employees.
For purposes of the Act, section 810.2 defines the term "employee" to include officers and
uncompensated servants: "'Employee' includes an officer, judicial officer as defined in Section
327 of the Elections Code, employee, or servant, whether or not compensated, but does not
include an independent contractor." Footnote No. 3 Thus, we have determined that the members of
a board, commission, committee, or similar body established by the Constitution or by statute are
employees entitled to defense and indemnification. (See, e.g., 57 Ops.Cal.Atty.Gen. 358 (1974);
47 Ops.Cal.Atty.Gen. 163 (1966); 43 Ops.Cal.Atty.Gen. 209 (1964).)
The question presented for resolution is whether a county is required to defend and
indemnify grand jurors when sued with respect to statements contained in a final grand jury
report. Grand jurors are employees as defined in section 810.2, but are they employees of a
county so as to require the county to represent them? Footnote No. 4 It has been suggested that
grand jurors are employees of the state. We conclude that grand jurors are county employees for
purposes of the Act.
A "grand jury is a 'judicial body'" and is "an instrumentality of the courts of this state. . . .'
(In re Shuler (1930) 210 Cal. 377, 405 . . . .)" (People v. Superior Court (1973 Grand Jury),
supra, 13 Cal.3d at 438; accord, McClatchy Newspapers v. Superior Court, supra, 44 Cal.3d at
1171; see 67 Ops.Cal.Atty.Gen. 519, 520 (1984).) It has a "basic judicial nature." (McClatchy v.
Superior Court, supra, 44 Cal.3d at 1171.)
As explained in McClatchy Newspapers v. Superior Court, supra, 44 Cal.3d at 1170, a
grand jury has three functions:
"The California grand jury has three basic functions: to weigh criminal charges and
determine whether indictments should be returned ([Pen. Code,] § 917); to weigh allegations of
misconduct against public officials and determine whether to present formal accusations
requesting their removal from office ([Pen. Code,] § 922; see Gov. Code, § 3060 et seq.); and to
act as the public's 'watchdog' by investigation and reporting upon the affairs of local government
(e.g., [Pen. Code,] §§ 919, 925 et seq.)."
The present inquiry concerns solely the "watchdog" function of a grand jury. In California, the
grand jury's role to investigate and report upon "the operations of a variety of local governmental
activities has a long and respected heritage." (People v. Superior Court (1973 Grand Jury),
supra, 13 Cal.3d at 436, fn. omitted.) This "watchdog role is by far the one most often played by
the modern grand jury in California. [Citations.]" (McClatchy Newspapers v. Superior Court,
supra, 44 Cal.3d at 1170.)
The end product of a grand jury's watchdog activity is a final report that contains the
findings and recommendations on subjects of its investigations; the grand jury submits its report
on county government matters to the presiding judge of the superior court. (Pen. Code, § 933,
subd. (a); McClatchy Newspapers v. Superior Court, supra, 44 Cal.3d at 1170-1171, 1180;
Brooks v. Binderup (1995) 39 Cal. App. 4th 1287, 1291.)
A grand jury's final report may contain alleged defamatory statements against named
individuals who would have the right to sue the grand jurors for defamation. (See Pen. Code,
§ 930; McClatchy v. Superior Court, supra, 44 Cal.3d at 1176-1177; Brooks v. Binderup, supra,
39 Cal.App.4th at 1292; Gillett - Harris - Duranceau & Associates, Inc. v. Kemple (1978) 83
Cal. App. 3d 214, 217-219.) Must the county defend such lawsuits?
In 76 Ops.Cal.Atty.Gen. 70 (1993), we concluded that the officers of the local courts,
including the superior courts, are employees of the state rather than county employees for
purposes of the auditing authority of a grand jury. Our conclusion was predicated upon an
analysis of both the Brown-Presley Trial Court Funding Act (§§ 77000-77400), which recently
shifted the costs of operating the local court system from the counties to the state (§ 77200), and
the Trial Court Reorganization and Realignment Act (§ 68112), requiring audits and reports to
the state (§§ 68113, 68520, 77206). Neither of these statutory schemes, however, has any
application to the financing of the operations of a grand jury (see §§ 68520, subd. (a); 77006.5;
77003, subd. (a)(7)) or to the issue of whether grand jurors are county employees for purposes of
the Act.
In 68 Ops.Cal.Atty.Gen. 127 (1985), we concluded that for purposes of the Act, a retired
judge sitting by assignment as a judge of a superior, municipal, or justice court is an employee of
the county. After quoting at length from Villanazul v. City of Los Angeles (1951) 37 Cal. 2d 718,
we observed "that officers and attaches of the municipal court may be considered for many
purposes as employees of the county. [Citations.]" (Id., at p. 132.)
In Villanazul v. City of Los Angeles, supra, 37 Cal. 2d 718, the Supreme Court ruled that a
deputy marshal of a municipal court is an employee of the county for purposes of the Act. The
court explained in part:
"It must be conceded at the outset that a municipal court is a part of the judicial system of
the state, and the constitution or control of such courts, except only the question as to whether
one shall be established in a given locality, is a state rather than a municipal affair. [Citation.] It
does not follow, however, that a municipal court is an agency of state government, as
distinguished from county or city government, in the sense that a deputy marshal is a state
employee. . . .
"The fact that the Legislature created the office of deputy marshal and prescribed the duties
and salary of the position does not fix the status of such a person as a state, rather than a county
or city employee. The Legislature creates many and varied offices or positions of local
government, with specified duties and salaries. [Citation.] The clerk of a city justice's court
comes within this category but is an officer of the county government. [Citation.]
"The constitutional and statutory provisions authorizing and governing municipal courts,
considered in connection with the purpose and effect of the establishment of such courts, lead to
the conclusion that they have been impressed with a local character. . . ." (Id., at pp. 722-723.)
Similarly, here, the watchdog function of a grand jury is "impressed with a local character"
for purposes of the Act. Its investigative and reporting duties with respect to the administration
and fiscal operations of county officers, departments, and operations (Pen. Code, §§ 888, 893,
914.1, 925, 928, 933; 76 Ops.Cal.Atty.Gen., supra, 71-72) are local in nature. Significantly, a
grand jury's funds, expenses, and fees are set by the county's board of supervisors and paid out of
the county's general fund. (§ 68091; Pen. Code §§ 890, 890.1, 914.5.) Grand jurors must
accordingly be considered employees of the county, rather than of the state, for purposes of the
Act. Footnote No. 5
We conclude that a county is required to provide indemnification and defense for grand
jurors sued for statements made within the scope of their reporting duties that are contained in a
final grand jury report.
*****
Footnote No. 1
Unidentified section references herein are to the Government Code.
Footnote No. 2
Section 995.2 specifies conditions under which a public entity may refuse to provide a defense, including a
determination by the public entity that the act or omission of the employee was not within the scope of employment.
The present inquiry assumes that the act or omission in question falls within the grand jury's scope of employment.
(See McClatchy Newspapers v. Superior Court (1988) 44 Cal. 3d 1162, 1172; People v. Superior Court (1973 Grand
Jury) (1975) 13 Cal. 3d 430, 440-442.)
Footnote No. 3
Elections Code section 327 defines a judicial officer as "any Justice of the Supreme Court, justice of a court of
appeal, judge of the superior court, judge of a municipal court, or judge of a justice court."
Footnote No. 4
Grand jurors may not be considered to be independent contractors for purposes of the Act. (See Hinman v.
Westinghouse Elec. Co. (1970) 2 Cal. 3d 956, 960; Gonzalez v. Workers' Comp. Appeals Bd. (1996) 46 Cal. App. 4th
1584, 1589-1590; Briggs v. Lawrence (1991) 230 Cal. App. 3d 605, 617-618; Chavez v. Sprague (1962) 209
Cal. App. 2d 101, 109-111.)
Footnote No. 5
The fact that a county may have failed to provide its grand jurors with indemnification in the past (see Brooks v.
Binderup, supra, 39 Cal.App.4th at 1293) does not affect our determination that grand jurors are employees of a
county as the term "employee" is defined in section 810.2.