gno.law

State of California v. Superior Court

California Court of Appeal · D004709 · 1986-08-12 · Published · 184 Cal. App. 3d 394 · 229 Cal. Rptr. 74 · 1986 Cal. App. LEXIS 1910

The STATE OF CALIFORNIA, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; ST. MARY’S CATHOLIC CHURCH Et Al., Real Parties in Interest

Area
criminal
Panel
Howard B. Wiener (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:43Z · confidence high

The trial court ordered the State of California to be joined as a defendant in a civil action regarding the legality of a bingo system and denied the Attorney General's motion to strike. The Court of Appeal issued a peremptory writ of mandate compelling the trial court to strike the State as a party defendant, holding that the trial court lacked the authority to compel the executive branch's participation in a lawsuit where the State had no financial interest or liability.

Ruling reviewedStandardThe courtThe model
Order compelling the State of California to be joined as a defendant
“We believe the trial court has exceeded its discretion, if not its powers, in compelling the Attorney General’s participation.”
abuse of discretionerroragree with court
The appellate court held that the trial court exceeded its discretion and likely its powers because there is no specific authority for a court to compel the State's participation in a lawsuit where it has no financial interest, and doing so violates the separation of powers by interfering with the executive branch's internal management and policy decisions.

Authorities

  • relied: Moore v. Panish (1982) 32 Cal.3d 535 — Attorney General advisory opinions are advisory and not binding.
  • relied: Larson v. City of Redondo Beach (1972) 27 Cal.App.3d 332 — A court may not issue its writ to control the discretion of a public officer.
  • relied: State of South Dakota v. Brown (1978) 20 Cal.3d 765 — The court may not compel the Governor to exercise discretion in the matter of extradition.
  • relied: People v. Superior Court (Greer) (1977) 19 Cal.3d 255 — Prosecutorial decisions, including the conduct of a case and plea bargaining, are exclusively within the province of the executive branch and not subject to judicial coercion.
  • relied: United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359 — A peremptory writ is proper when the facts are not in dispute and the law is clear.

The appellate opinion: sound — The opinion is sound because it correctly applies the separation of powers doctrine to prevent the judiciary from compelling the executive branch to participate in litigation where it has no direct interest, citing established precedents regarding the discretionary nature of executive functions. It accurately distinguishes between the Attorney General's duty to issue advisory opinions and the lack of a duty to act as a party in private civil suits.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

The trial court, at the City's suggestion and without a formal joinder motion, ordered the State of California joined as a defendant in a declaratory relief and injunction action over an electronic bingo device, and then denied the Attorney General's motion to strike the State as a party while issuing a preliminary injunction against the City's prosecution. The Court of Appeal granted a peremptory writ of mandate in the first instance, holding the trial court exceeded its discretion and intruded on executive prerogatives by compelling the Attorney General's unwilling participation, and directed the trial court to strike the State as a party defendant.

Ruling reviewedStandardThe courtThe model
Order joining the State of California as a defendant and denial of the Attorney General's motion to strike the State as a party defendant
“We believe the trial court has exceeded its discretion, if not its powers, in compelling the Attorney General’s participation.”
abuse of discretionerror (discretion)agree with court
The court reasons that no statute or rule imposes a duty on the Attorney General to appear in every suit construing a penal statute, that AG opinions are merely advisory (Gov. Code § 12519; Moore v. Panish), and that compelling an executive officer to litigate a case in which the State has no financial stake or liability treads on separation of powers (Cal. Const., art. III, § 3) by analogy to the charging and extradition cases. The result is defensible: the State was not a necessary party to a suit seeking to enjoin a city prosecution, and no claim was asserted against it. The analysis is somewhat loose, however, in treating a joinder order as if it were a writ to control an officer's discretion and in not addressing the compulsory joinder statute (Code Civ. Proc., § 389) at all.
Temporary restraining order and preliminary injunction barring the City from prosecuting the Church for use of the Bingo Master System
“Although we admit to have concerns with the validity of the underlying lawsuit, no one has asked us to remove the lawsuit from the court calendar.”
unclearnot reachedagree with court
The State's petition challenged only its forced joinder; no party sought review of the injunction or the propriety of civil equitable relief against a criminal prosecution, so the court expressly confined itself to the joinder question and left the injunction undisturbed despite voicing doubts about the underlying action.

Authorities

  • relied: Moore v. Panish (1982) 32 Cal.3d 535 — Attorney General opinions are advisory only and not binding on courts.
  • relied: Larson v. City of Redondo Beach (1972) 27 Cal.App.3d 332 — A court may not issue a writ to control the discretion of a public officer; mandate lies only to compel a plain, ministerial duty.
  • relied: State of South Dakota v. Brown (1978) 20 Cal.3d 765 — Courts may not compel the Governor to exercise discretion over extradition of fugitives; the matter is committed to the executive.
  • relied: Way v. Superior Court (1977) 74 Cal.App.3d 165 — The pardon and commutation power is purely discretionary with the executive and not subject to legislative or judicial encroachment.
  • relied: People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193 — A court may not direct the district attorney whom to prosecute or otherwise interfere with the executive charging function.
  • relied: People v. Smith (1975) 53 Cal.App.3d 655 — The charging decision is an executive function beyond judicial control.
  • relied: People v. Superior Court (Greer) (1977) 19 Cal.3d 255 — Courts may disqualify a prosecutor for conflict of interest, but the prosecutor otherwise retains exclusive control over charging, trial tactics, and plea negotiations.
  • relied: Laisne v. Cal. St. Bd. of Optometry (1942) 19 Cal.2d 831 — Because governmental powers inevitably overlap, the legitimacy of one branch's intrusion into another's domain has no simple test.
  • relied: United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359 — A peremptory writ may issue in the first instance where an alternative writ would add nothing to the presentation.
  • relied: Goodenough v. Superior Court (1971) 18 Cal.App.3d 692 — Code of Civil Procedure section 1088 permits a peremptory writ in the first instance when the issue is clear.
  • missed: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Before issuing a peremptory writ in the first instance, an appellate court must give the parties notice that it may do so and an opportunity to respond; the opinion issues such a writ without mentioning Palma or reciting that notice was given.

The appellate opinion: sound with gaps — The court reaches a defensible result: nothing obligated the Attorney General to defend a suit against a city in which the State had no stake, and the separation of powers concern with forcing an executive department into litigation is real. But the opinion treats a joinder order as though it were a writ compelling official action, never addresses the compulsory joinder statute (Code Civ. Proc., § 389) that would ordinarily govern whether a party must be joined, and issues a peremptory writ in the first instance without acknowledging the notice requirement of Palma v. U.S. Industrial Fasteners.

How this analysis was made · dispute it

Opinion — Wiener

*396 Opinion

WIENER, Acting P. J.

The office of the Attorney General, representing the State of California (State), seeks a writ of mandate or prohibition and a stay preventing the trial court from compelling the State to be joined as a defendant in this lawsuit.

Penal Code section 326.5 defines what constitutes a legal bingo game and makes it a misdemeanor to conduct bingo games except in accordance with the statute. St. Mary’s Catholic Church (Church) and Selectro-Vision, Limited have brought a civil action against the City of National City (City) in the superior court, seeking declaratory relief and an injunction to prevent criminal prosecution of the Church’s contemplated use of Selectro-Vision’s electronic computer-controlled bingo system which permits playing 40 bingo cards simultaneously. Plaintiffs contend City has informed them the device is an illegal gambling device, based on two earlier opinions from the office of the Attorney General, and therefore the City will prosecute Church if it uses the device. (Those opinions are 66 Ops.Cal.Atty.Gen. 276 (1983) and 67 Ops.Cal.Atty.Gen. 528 (1984).)

At the suggestion of City, but without a formal joinder motion, the trial court ordered the State of California be joined as a defendant. The court also issued a temporary restraining order preventing City’s prosecution of Church for use of the so-called “Bingo Master System.” At the preliminary injunction hearing, the court denied the motion of the Attorney General on behalf of State to strike State as a party defendant. The court also issued a preliminary injunction.

State brings this writ petition, arguing the trial court has no power to compel its participation. It says the trial court made its ruling because interpretation of a state penal statute is involved and the office of the Attorney General has issued advisory opinions of some relevance to the issues. However, State says, these facts do not give it a substantial interest in the lawsuit so as to compel its unwilling participation. It points out the Attorney General is authorized and indeed obliged to issue advisory opinions to designated state and local officials (Gov. Code, § 12519), but those designated officials do not include superior court judges. Further, his opinions are only advisory and not binding in any event. (Gov. Code, § 12519, supra; Moore v. Panish (1982) 32 Cal.3d 535, 550-552 [186 Cal.Rptr. 475, 652 P.2d 32].) To compel participation of the Attorney General’s office in every lawsuit where an opinion of the office might be relevant or where interpretation of a state penal law is involved would, State says, draw the office into innumerable lawsuits and would overwhelm its resources, undermining *397 its primary functions. Between 1979 and 1985, the office of the Attorney General has issued 723 official opinions.

Although we admit to have concerns with the validity of the underlying lawsuit, no one has asked us to remove the lawsuit from the court calendar. We are only concerned with the issue of removal of the State of California as an unwilling defendant, We believe the trial court has exceeded its discretion, if not its powers, in compelling the Attorney General’s participation. Our decision to liberate the State here is influenced both by the lack of any specific authority for the court to order the State’s participation and also by the doctrine of separation of powers.

Starting with the question of authority for the court’s order, we note the well-established rule a court may not issue its writ to control the discretion of a public officer. (See generally 8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, §§ 70, 80, pp. 709-710, 720-721; e.g., Larson v. City of Redondo Beach (1972) 27 Cal.App.3d 332, 337 [103 Cal.Rptr. 592].)

Put another way, a court cannot order a public officer to do something unless that officer has a plain duty to do it. Here, the office of the Attorney General has a general obligation to prepare advisory opinions but none to participate as advisor or amicus curiae, let alone defendant, in every lawsuit questioning the meaning of a state law. Accordingly, there is no basis for the court’s order to the State to make itself available.

The doctrine of separation of powers, expressed in California Constitution, article III, section 3, holds one branch of our tripartite government may not exercise powers delegated to another coordinate branch. Here, the question is whether the judiciary may properly tell a department of the executive branch to join in a lawsuit. Such trespass upon the internal management and policy decisions of the Attorney General’s office seems perilously close to the brink of unwarranted interference in violation of constitutional mandate.

To give some examples of the separation of powers doctrine, we know, from State of South Dakota v. Brown (1978) 20 Cal.3d 765 [144 Cal.Rptr. 758, 576 P.2d 473], that the court may not compel the Governor to exercise discretion in the matter of extradition of fugitives. The power of pardon or commutation of sentence is likewise purely discretionary with the executive branch and not subject to legislative or judicial encroachment. (See discussion in Way v. Superior Court (1977) 74 Cal.App.3d 165, 176 [141 Cal.Rptr. 383].) It is also well established a court may not tell a district attorney whom to prosecute nor otherwise interfere with the charging func *398 tion, another purely executive power. (People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, 207 [103 Cal.Rptr. 645, 66 A.L.R.3d 717]; People v. Smith (1975) 53 Cal.App.3d 655 [126 Cal.Rptr. 195]; see discussion in People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 262 et seq. [137 Cal.Rptr. 476, 561 P.2d 1164], permitting the court to disqualify a prosecutor but otherwise validating the exclusive executive control over the charging function.) The Greer case, supra, notes other prosecutorial decisions immune from court control: the district attorney may conduct a case in the manner he chooses, have the same control over trial tactics, within legal bounds, as any attorney, and negotiate a plea bargain. (People v. Superior Court (Greer), supra, at p. 267.) The decision of the Attorney General whether to participate in a lawsuit, where the State has no financial interest at stake nor possible liability, is a decision purely discretionary and, like decisions regarding the prosecution and conduct of criminal trials, exclusively within the province of the Attorney General’s office and not subject to judicial coercion.

Because of the inevitable overlap of powers among the governmental branches, no easy way exists to determine the legitimacy of one branch’s interference in another’s domain. (See generally Laisne v. Cal. St. Bd. of Optometry (1942) 19 Cal.2d 831, 835 [123 P.2d 457].) We decline to hold a court may never under any circumstances draw an unwilling governmental officer into a lawsuit, but this is not such a case. The showing made of the Attorney General’s expertise as to the meaning of the term “bingo” in Penal Code section 326.5 is not enough to compel him to defend the suit.

An alternative writ or order to show cause would add nothing to the presentation. A peremptory writ is proper. (Code Civ. Proc., § 1088; United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359 [169 Cal.Rptr. 827]; Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697 [96 Cal.Rptr. 165].)

Let a writ of mandate issue compelling the trial court to grant the Attorney General’s motion to strike the State of California as a party defendant.

Work, J., and Butler, J., concurred.

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