(SAN FRANCISCO, August 11, 2014)—Today, the Supreme Court of California issued an opinion that affects potentially thousands of drivers statewide—8,000 a week alone in Los Angeles County. The Court’s decision in Steen v. Appellate Division, Los Angeles County Superior Court (No. S174773) ends a long-running dispute over the constitutionality of Penal Code section 959.1(c), which permits court clerks to issue misdemeanor complaints arising from a driver’s failure to appear in traffic court on a traffic citation.

The Supreme Court rejected arguments by defendant Jewelerene Steen that the law violates the California Constitution’s guarantees of due process and the separation of powers. All seven justices agreed that the statute does not violate due process, and five of the seven agreed that, because there was undisputed evidence that the Los Angeles City Attorney had pre-approved the clerk’s issuance of such complaints in these failure-to-appear cases, the statute does not violate the separation of powers doctrine.

Justices Goodwin Liu and Peter Siggins (the latter sitting pro tem) concurred in the judgment, concluding that, although such pre-approval does not cure what is otherwise a separation-of-powers violation, because Steen did not suffer any prejudice by that process, her failure-to-appear conviction was not constitutionally infirm.

Reed Smith Appellate Group leader, Paul Fogel, who, along with Dennis Peter Maio, represented the Appellate Division of the Los Angeles County Superior Court in the matter. Fogel said of the ruling:

The majority’s opinion represents a practical approach to the way misdemeanor failure-to-appear prosecutions are commenced in Los Angeles County. All seven justices agreed that there is no due process right to prosecutorial discretion in the 8,000 complaints that are filed weekly. As they explained, due process does not forbid a prosecutor from giving advance approval, even implicitly, to a clerk’s routine issuance of complaints in cases subject to the statute. Because such cases arise out of judicial rather than non-judicial proceedings, they are based on facts uniquely within the clerk’s knowledge and can be processed in a way that is economical and technologically appropriate.

Fogel also noted that “all seven justices agreed that commencing such prosecutions without a prosecutor’s approval would present a serious constitutional question by impairing a core executive branch function—the discretionary power to initiate criminal prosecutions.” “However,” he noted, because a prosecutor may validate a complaint that someone else files by approving, authorizing or concurring in it and the City Attorney’s office here pre-approved the clerk’s routine issuance of failure-to-appear complaints, “the Court held that the complaint was valid and the prosecution was timely commenced.”

Typically, when California drivers receive a citation for a traffic offense, they must sign a promise to appear in traffic court for disposition of the matter. The defendant’s failure to appear following such a promise is a misdemeanor, although the courts usually dispose of such violations as infractions. The number of such failure-to-appear matters is staggering—the record in Steen showed that as many as 8,000 failure-to-appear misdemeanor complaints issued each week in Los Angeles County alone.

More than 20 years ago, in response to the Municipal Court Clerks’ Association that processing these cases needed to be streamlined, the Legislature enacted Penal Code section § 959.1(c), which permits court clerks to file such failure-to-appear complaints electronically, using information uniquely in court records. These matters are then prosecuted by a city attorney or district attorney when the defendant later appears or is picked up on an arrest warrant.

In a number of cases throughout the last ten years, defendants have challenged the constitutionality of the statute, claiming that it violates the separation of powers and due process because only a prosecutor may issue a failure-to-appear complaint.

In 2009, following an Appellate Division decision adverse to defendant Jewelerene Steen, the California Supreme Court decided to weigh in on these issues, inviting both the People, represented by the Los Angeles City Attorney’s Office, and the Appellate Division of the Los Angeles County Superior Court, to respond. The Appellate Division engaged Fogel and Maio of Reed Smith to represent it in the state high court. Oral argument was presented in June 2014, leading to today’s opinion.

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