Metropolitan News-Enterprise


Wednesday, June 20, 2018


Page 3


Court of Appeal:

Improper Defendant Named in Challenge to Fee for Jury Trial

Judicial Council, Not the State, Should Have Been Sued, First District Declares


By a MetNews Staff Writer


An action challenging the constitutionality of a $150 fee for a jury trial in a civil case should have been brought against the Judicial Council, not the state, the First District Court of Appeal has held.

The opinion was penned by Acting Presiding Justice William R. McGuiness of Div. Three. It affirms a decision of the Santa Clara Superior Court granting judgment on the pleadings to the state.

The decision comes in a car accident case, in which plaintiffs Geraldine and Mark Templo are suing the driver of the other car. However the appeal concerns only the plaintiffs’ third cause of action, against the state.

In their complaint, the Templos alleged that Code of Civil Procedure §631(b), requiring payment of a nonrefundable jury fee, is unconstitutional under Proposition 26. Enacted by voters on Nov. 2, 2010, that proposition amended the state Constitution to redefine certain fees as taxes.

It requires all taxes to be approved by a two-thirds majority of the Legislature and shifts the burden to the state to show that a fee is not actually a tax.

Code of Civil Procedure §631(b), provides in part:

“At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case.”

The plaintiffs named the state as the defendant for their challenge to the fee, but the trial court found that the state was not the proper defendant, and the appeals court, on Monday, agreed.

Judicial Council

The opinion does not address whether the jury trial fee is or is not a constitutional tax. Rather, it focuses solely on what entity should have been sued.

McGuiness cited the California Supreme Court’s 1976 decision in Serrano v. Priest II, dealing with public school financing, for the proposition that in a challenge to the constitutionality of a statute, state and local entities with “direct institutional interest” in the outcome are the proper defendants.

In that case, the majority held that the governor and the Legislature were not indispensable parties. (The lead defendant was Ivy Baker Priest Stevens, who had been state treasurer from 1967–75, and died about six months after leaving office.)

 The jury fee, when collected by a superior court, makes its way to the state’s Trial Court Trust Fund, McGuiness said. He wrote:

“The Judicial Council bears the responsibility for administering and controlling funds allocated to the judicial branch, including the Trial Court Trust Fund….

“The Judicial Council is also the agency that is required to provide for ‘the representation, defense, and indemnification’ of any actions affecting the courts, and shall manage any proceedings, actions or claims that affect the trial courts….

“Accordingly, in the instant case, it is the Judicial Council, and not the State as a whole, that has the ‘direct institutional interest’ necessary to defend the action.”

Burden of Proof

The Templos argued that as the result of enactment of Proposition 26, Article XIII A, §3 of the California Constitution provides:

“The State bears the burden of proving by a preponderance of the evidence that a levy, charge, or other exaction is not a tax.”

In light of that provision, they maintained, the state is the proper party.

McGuiness responded that Proposition 26 was in large part an effort to abrogate the California Supreme Court’s 1997 decision in Sinclair Paint Co. v. State Board of Equalization. There, Justice Ming Chin declared, for a unanimous court, that the party challenging a fee has the burden of establishing its invalidity.

In Monday’s opinion, McGuiness said:

“The language in Article XIII A, Section 3, therefore merely directs that the government—and not the individual plaintiff—has the burden of proof. It does not designate which public entity is the proper defendant for meeting that burden, nor is it reasonable to require the State to defend all Proposition 26 cases.”

The case is Templo v. State of California, 2018 S.O.S. 3083.


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