                      TO BE PUBLISHED IN THE OFFICIAL REPORTS


                           OFFICE OF THE ATTORNEY GENERAL

                                     State of California


                                     DANIEL E. LUNGREN

                                       Attorney General


                         ______________________________________

                  OPINION            :
                                     :          No. 91-303
                  of                 :
                                     :          OCTOBER 8, 1991
        DANIEL E. LUNGREN            :
           Attorney General          :
                                     :

        ANTHONY S. Da VIGO           :

        Deputy Attorney General      :

                                     :
______________________________________________________________________________

         THE HONORABLE L. B. ELAM, COUNTY COUNSEL, COUNTY OF
SACRAMENTO, has requested an opinion on the following questions:

               1. Do judges and commissioners of the municipal court qualify as "state" officers
or employees entitled to additional compensation benefits for service on active duty during the Iraq-
Kuwait crisis as members of the California National Guard or a United States Military Reserve
organization?

              2. If so, what is the amount of the additional compensation benefits provided to the
judges and commissioners of the municipal court?

               3. What public agency is obligated to pay the additional compensation benefits to
the judges and commissioners of the municipal court?

                                         CONCLUSIONS

               1. Judges and commissioners of the municipal court qualify as "state" officers or
employees entitled to additional compensation benefits for serving on active duty during the Iraq-
Kuwait crisis as members of the California National Guard or a United States Military Reserve
organization.

                2. The amount of the additional compensation benefits provided to the judges and
commissioners of the municipal court is the difference between the amount of the military pay and
allowances and the amount which would have been received as a judge or commissioner of the
municipal court, including merit raises and benefits that generally would otherwise have been
received, commencing on the first calendar day of military leave, except for those who have been
in the public service for a period of not less than one year, in which event the additional benefits
commence on the thirty-first calendar day of military leave, and extend in either event for a
maximum of 180 calendar days of active duty.

                                                 1.                                          91-303

               3. The State of California is obligated to pay the additional compensation benefits
provided to the judges and commissioners of the municipal court.

                                            ANALYSIS

               In response to the mobilization of forces in connection with the Iraq-Kuwait conflict,
the Legislature recently enacted (Stats. 1990, ch. 988) and amended (Stats. 1991, ch. 138) Military
and Veterans Code section 395.071 to now provide in part as follows:

               "(a) In addition to the benefits provided pursuant to Sections 395.01 and
       395.02, any officer or employee of the legislative, executive, or judicial department
       of the state, who, as a member of the California National Guard or a United States
       Military Reserve organization, is called into active duty as a result of the Iraq-Kuwait
       crisis on or after August 2, 1990, shall have the benefits provided for in subdivision
       (b).

               "(b) Any officer or employee to which subdivision (a) applies, while on
       active duty, shall, with respect to active duty served on or after August 2, 1990,
       receive from the state, for a period not to exceed 180 calendar days, as part of his or
       her compensation, both of the following:

               (1)    The difference between the amount of his or her military pay and
       allowances and the amount the officer or employee would have received as a state
       officer or employee, including any merit raises which would otherwise have been
       granted during the time the individual was on active duty.

              "(2) All benefits which he or she would have received had he or she not been
       called to active duty unless the benefits are prohibited or limited by vendor
       contracts."2

               We are asked to determine (1) whether section 395.07 applies to judges and
commissioners of the municipal court, and if so, (2) the amount of the compensation benefits and
(3) the agency responsible for their payment.

               1.      State Officers and Employees
                The first question presented for resolution concerns whether municipal court judges
and commissioners are "state" officers or employees for purposes of section 395.07. The issue arises
because "officers and attaches of the municipal court may be considered for many purposes as
employees of the county." (67 Ops.Cal.Atty.Gen. 519, 522 (1984); see Villanazul v. City of Los
Angeles (1951) 37 Cal.2d 718; Martin v. County of Contra Costa (1970) 8 Cal.App.3d 856;
Gutierrez v. Municipal Court (9th Cir. 1988) 838 F.2d 1031; 68 Ops.Cal.Atty.Gen. 127 (1985); 64
Ops.Cal.Atty.Gen. 261 (1981); 56 Ops.Cal.Atty.Gen. 320 (1973); 56 Ops.Cal.Atty.Gen. 41 (1973).
What is their status under the terms and for the purposes of section 395.07?

   1
    All section references are to the Military and Veterans Code unless otherwise specified.
   2
    Under sections 395.01 and 395.02, public employees receive their full salaries for the first 30
days of active duty when granted military leaves of absence, if they have been employed a minimum
of one year. Government Code sections 19775 and 19775.1 provide similar benefits for state
employees who are members of the state civil service system.

                                                 2.                                               91-303

                 Municipal courts are established under the Constitution as an integral component of
the independent and coordinate branch of state government through which the judicial power of the
state is exercised. (Cal. Const., art. VI, § 5; Sacramento & San Juaquin Drainage Dist. v. Superior
Court (1925) 196 Cal. 414, 432; 67 Ops.Cal.Atty.Gen. 519, supra, 521; 56 Ops.Cal.Atty.Gen. 320,
supra, 321.) The workings, procedures, powers, and general constitution of municipal courts are
state rather than municipal or local affairs. (County of Sonoma v. Workers' Comp. App. Bd. (1990)
222 Cal.App.3d 1133, 1137; 67 Ops.Cal.Atty.Gen. 519, supra, 521; 64 Ops.Cal.Atty.Gen. 261, 270
(1981).)

                 It is clear that the Constitution and statutes reserve to the state alone the direction and
control over municipal court judges. Specifically, municipal courts are organized and their
jurisdiction prescribed by the Legislature. (Cal. Const., art. VI, § 5.) A municipal court judge may
be suspended, censured, removed, or retired by the Supreme Court, acting on recommendation of
the Commission on Judicial Performance. (Cal. Const., art. VI, § 18.) Rules governing the practice,
procedure, and administration of municipal courts are promulgated by the Judicial Council. (Cal.
Const., art. VI, § 6.) Vacancies in the office of municipal court judge are filled by the appointment
of the governor. (Gov. Code, § 71180.) Judges of municipal courts are subject to impeachment by
the Assembly and trial by the Senate. (Cal. Const., art. IV, § 18; 74 Ops.Cal.Atty.Gen. 111 (1991).)
Retirement benefits for municipal court judges are provided by the Legislature. (Cal. Const., art.
§ VI, § 20; Gov. Code, § 68202, subd. (b).)

                Although the salaries of municipal court judges, officers, and employees are paid by
the county (Gov. Code, § 71220; 56 Ops.Cal.Atty.Gen. 320, supra, 321-322), the amount of
compensation is prescribed by the Legislature (Cal. Const., art. VI, §§ 5, 19; Gov. Code, §§ 68202,
72000; 67 Ops.Cal.Atty.Gen. 519, supra, 521; 56 Ops.Cal.Atty.Gen. 320, supra, 321). Indeed, the
funding of trial courts has been significantly altered by the recent enactment of the Brown-Presley
Trial Court Funding Act, providing a block grant state funding program. (Gov. Code, § 77000, et
seq.) This program, which is optional with each county (Gov. Code, § 77301),3 attenuates even
further the employment relationship between municipal court personnel and county government.
(County of Sonoma v. Workers' Comp. App. Bd., supra, 222 Cal.App.3d at 1142-1143, fn. 5.)

                  In 74 Ops.Cal.Atty.Gen. 111, supra, 113-114, we based our determination that judges
of municipal courts are subject to impeachment by the Assembly and trial by the Senate upon the
premise that such officers are "judges of state courts" within the purview of section 18 of article IV
of the Constitution. In 64 Ops.Cal.Atty.Gen. 261, supra, 270, we determined that section 6 of article
XIIIB of the Constitution ["Whenever . . . any state agency mandates a new program or higher level
of service . . ."] applied to the cost of judicial arbitration pursuant to municipal court rule:

                "As to the first point, we conclude that a local court rule which mandates
        arbitration costs on a county would be the rule of `any state agency' within the
        meaning of Article XIIIB. . . . Although court personnel may be considered
        employees of local government for various purposes (see, e.g., Martin v. County of
        Contra Costa (1970) 8 Cal.App.3d 856) it can hardly be said that the courts, whether
        they be superior, municipal or justice courts, are part of local government.
        Accepting the purpose of article XIIIB, section 6, to preserve the financial integrity
        of local governments such as counties, we accordingly believe that when the
        Legislature elects to give the courts the power to impose new costs for new programs


    3
    We are apprised that all 58 counties have elected to participate in the trial court block grant
funding.

                                                    3.                                              91-303
       upon counties, the action of the court in doing so should be viewed as the action of
       a state agency implementing state law."

                We are not persuaded to the contrary by the Supreme Court's decision in Villanazul
v. City of Los Angeles, supra, 37 Cal.2d 718. First, that case simply did not concern the status of
a municipal court judge. The court held that counties may have to respond to actions in tort brought
against deputy marshals employed by municipal courts. Moreover, the case was decided under the
Constitution and statutes then in existence, which have been significantly revised to clarify the
authority of the state over municipal and justice courts. (County of Sonoma v. Workers' Comp. App.
Bd., supra, 222 Cal.App.3d at 1141-1142; County of Madera v. Superior Court (1974) 39
Cal.App.3d 665, 669.)

              While section 395.07 clearly applies to judges (cf. People ex rel. Happell v. Sischo
(1943) 23 Cal.2d 478, 484-486), we are similarly persuaded that it applies to other officers and
employees of the court, including commissioners. Again, section 395.07 expressly includes "any
officer or employee of the . . . judicial department of the state." This language precludes any
dichotomy, as drawn by the Villanazul court, between judges and other officers of the court.
Whether a commissioner is an employee of the court, the county, or the state for various other
purposes is immaterial; he or she is an "officer . . . of the . . . judicial department of the state."

              In this regard, we note that section 22 of article VI of the Constitution authorizes the
Legislature to "provide for the appointment by trial courts of record of officers such as
commissioners to perform subordinate judicial duties." (Emphasis added.)4 Pursuant to this
authority, Government Code section 72190 was enacted to provide in part as follows:

               "Within the jurisdiction of the court and under the direction of the judges,
       commissioners of municipal courts or justice courts shall exercise all the powers and
       perform all of the duties authorized by law to be performed by commissioners of
       superior courts and such additional powers and duties as may be prescribed by law.
       At the direction of the judges, commissioners may have the same jurisdiction and
       exercise the same powers and duties as the judges of the court with respect to any
       infraction or small claims action. The commissioners of municipal courts or justice
       courts shall possess the same qualifications the law requires of a judge and shall hold
       office during the pleasure of the court appointing them and shall not engage in the
       private practice of law. They shall be ex officio deputy clerks."
               Commissioners, subject to the supervision of the court, take proof and make and
report findings as to any matter of fact upon which information is required by the court, take and
approve bonds and undertakings, administer oaths and affirmations, take affidavits, depositions, and
acknowledgments and proof of deeds and other instruments, act as temporary judges when so
qualified and appointed, and hear, report on, and determine uncontested sections and proceedings.
(Code Civ. Proc., § 259.) In addition, a municipal court commissioner may conduct arraignment
proceedings, if so directed, including the issuance and signing of bench warrants. (Gov. Code, §
72190.1.)

               In answer to the first question, therefore, we conclude that judges and commissioners
of the municipal court qualify as "state" officer or employees entitled to additional compensation
benefits for serving on active duty during the Iraq-Kuwait crisis as members of the California
National Guard or a United States Military Reserve organization.

   4
    Municipal courts are trial courts of record. (Cal. Const., art. VI, § 1.)

                                                  4.                                             91-303

                2.      Amount of Additional Compensation

                We next consider the amount of the additional compensation benefits. Section 395.07
provides that in addition to the benefits provided under sections 395.01 and 395.02, the officer or
employee is to receive, for a period not to exceed 180 calendar days, the difference between the
amount of his or her military pay and allowances and the amount that would have been received,
including merit raises, "as a state officer or employee," plus all benefits that generally would have
been received if not called to active duty.5

                Sections 395.01 and 395.02 provide that any public employee who has been in the
public service for a period of not less than one year immediately prior to the military leave is entitled
to receive his or her regular salary for the first 30 calendar days of the absence. (Peters v. State of
California (1987) 188 Cal.App.3d 1421.) Section 395.07 thus would not provide any additional
benefits for the first 30 days of leave.

               Section 395.07, however, does not contain the condition of prior public employment
for one full year. Consequently, for those who satisfy the condition, the additional benefits
commence upon the thirty-first calendar day; for those who have not been employed for a full year,
the additional benefits commence upon the first day of absence.6 The length of the additional
compensation benefits is a maximum of 180 calendar days of active duty.

                3.      Public Entity Responsible for Payment

                 We must finally identify the public agency responsible for the payment of the
additional compensation benefits. Subdivision (b) of section 395.07 provides that an employee to
whom the section applies "shall . . . receive from the state" the additional benefits. We find no basis
for interpreting this unequivocal phrase. "`If the words of the statute are clear, the court should not
add to or alter them to accomplish a purpose that does not appear on the face of the statute or from
its legislative history.'" (Schmidt v. Superior Court (1987) 43 Cal.3d 1060, 1066.) "When the
language is clear and unambiguous, there is no need for construction. [Citations.]" People v.
Woodhead (1987) 43 Cal.3d 1002, 1007-1008.) We have examined the legislative history of section
395.07 and find nothing inconsistent with the statute's plain wording. Accordingly, we conclude that
under section 395.07 the agency responsible for payment of the additional compensation benefits
is the State of California.

                                               *****




   5
    Payment of the latter benefits is authorized "unless the benefits are prohibited or limited by
vendor contracts." (§ 395.07, subd. (b)(2).)
   6
    We believe that the designated period begins in either case upon the first day of leave.

                                                   5.                                            91-303
