publication rights contract between attorney and defendant does not per se render counsel ineffective and conflicts of interest created thereby are waivable
How later courts described this case
- publication rights contract between attorney and defendant does not per se render counsel ineffective and conflicts of interest created thereby are waivable
- upholding the delegation of authority to the Judicial Council to promulgate sentencing guidelines
Written by the judges who cited it.
The opinion
NEWMAN, J., Concurring.
Nearly 50 years ago this court stated: “In the creation of the board of harbor commissioners of the port of Eureka, Statutes 1869-70, page 744, it was attempted to confer upon that board power to impose penalties for any violation of such rules and regulations as that board should make pursuant to the act creating it, not exceeding, for any one violation, the sum of $500. This provision was declared unconstitutional in the case of Board of Harbor Commissioners, etc., v. Excelsior Redwood Co. (1891) 88 Cal. 491 [ 26 P. 375 ]. The court there held that conceding the legislature could delegate to the plaintiff the authority to make rules and regulations with reference to the navigation of Humboldt Bay, the penalty for a violation thereof was in the hands of the legislature, and the error was not cured by fixing a maximum penalty, for the vice lay in attempting to delegate such legislative power to plaintiff.” (Gilgert v. Stockton Port District (1936) 7 Cal.2d 384, 390 [ 60 P.2d 847 ].)
*715 That reference in the final five words to “such legislative power” referred, I believe, to the power to prescribe penalties. “We are of the opinion, therefore,” said Justice Pullen for a unanimous court, “that in so far as the Port District Act attempts to delegate penal authority to the port district or its commission ... it is unconstitutional .... ” (Ibid. at p. 392.)
I concur with the majority here because I have concluded that Penal Code section 1170.3 does not delegate “penal authority” within the meaning of the Gilgert opinion. By no means, though, would I support any inference that either Gilgert or Board of Harbor Commissioners, supra, has now been overruled. (Cf. W. Gellhorn, Administrative Prescription and Imposition of Penalties, 1970 Wash.U.L.Q. 265, 268: “Administrative Prescription of the Penalty Attaching to An Offense.”)
In addition, it should be noted that precedents dealing with the delegation of adjudicative power (see, e.g., maj. opn., ante p. 713, citing In re Marks (1969) 71 Cal.2d 31, 52-53 [ 77 Cal.Rptr. 1 , 453 P.2d 441 ], and Southern Pac. Transportation Co. v. Public Utilities Com. (1976) 18 Cal.3d 308, 313 [ 134 Cal.Rptr. 189 , 556 P.2d 289 ]) rarely guide us when we are concerned with the delegation of legislative power. (See 1 Davis, Administrative Law Treatise (2d. ed. 1978) § 3:10; Newman & Surrey on Legislation (1955) pp. 603 (fn. 8.) and 620.)