Resolving the misunderstood and misinterpreted issue of “territorial jurisdiction” of the court

Some hold and advocate a belief that judges cannot make orders if they are outside the state of California. This misguided conclusion is based upon a fundamental misunderstanding of territorial jurisdiction or authority. It also ignores state statutory law and its historical context, and state, federal and international case law. The authority presented below clearly establishes that "Territorial Jurisdiction" applies to the case, not to the judge's geographical location.

Territorial jurisdiction is defined as the territory where the case or matter is located, not the territory where the judge is located. This was explained by the California Court of Appeal with a hint of frustration:

"Finally, they cite Code of Civil Procedure Section 166...."

"Plaintiffs' argument confuses 'territorial jurisdiction' and/or 'subject matter jurisdiction,' in the sense of fundamental jurisdiction over a cause, with a court's 'jurisdiction' to take a particular action. It also confuses territorial jurisdiction with the court's power to hear and determine. The Marin County Superior Court had 'territorial jurisdiction' over the posttrial motions irrespective of Judge O'Malley Taylor's location. Similarly, Judge O'Malley Taylor's presence in or absence from California had no effect on the Marin County Superior Court's subject matter jurisdiction over the cause." (Emphasis added). Dell'Oca v. Bank of NY Trust (2008) 159 CA4th 531 at 543-544.

This clear explanation was accepted by the California Supreme Court in the criminal law case of People v. Billa (2003) 31 Cal.4th 1064, when ruling on whether an order signed by Chief Justice George outside of California was valid:

"We note that Chief Justice George was outside California (attending a board meeting of the national Conference of Chief Justices, of which he is currently president) when he communicated his concurrence in this opinion by transmitting to the Clerk of the Court (at the court's chambers in San Francisco), by facsimile, a signed copy of the signature page of this opinion indicating his concurrence. We conclude that the Chief Justice's concurrence in the opinion in this manner is valid, and that prior decisions of this court indicating that appellate justices may participate in a decision only if they are physically within California at the time they formally sign an opinion or order (see Cothran v. San Jose Water Works (1962) 58 Cal.2d 608, 612 [ 25 Cal.Rptr. 569, 375 P.2d 449]; People v. Ruef (1910) 14 Cal.App. 576, 623-632 [ 114 P. 54]), are no longer persuasive and should be overruled." The reference to the criminal case, People v. Ruef, dealt with the specific issue raised in this discussion: "The court has not heretofore been called upon to consider the effect of the absence of a justice from the state at the time an order signed by him was made." See Ruef at 623. This case was specifically overruled in supporting the legal finding that the location of the judge outside the state at time of signing does not invalidate an order. See People v. Billa (2003) 31 Cal.4th 1064.

Neither of these statutes addresses whether the magistrate has to be in the state to sign the warrants. (See Pen. Code Section 1526 sub. (B)(2) and Section 817 subd. (c)(2)." (Italics added). Tab 1, 2 at p.1.

Additionally:

"A judicial officer may issue an emergency protective order, or gun violence emergency protective order via telephone, but the statutes do not address whether the judicial officer has to be in the state to issue the order. (Fam.Code §6250; Pen. Code, §§18125, 18145 subd. (b).)" (Italics added). Id.

Historical Context of CCP §166

The superior court of general jurisdiction in each of California's counties wasn't established until the ratification of the second California Constitution in 1879, seven years after CCP §166 was enacted. Before that, multi-county district courts of general jurisdiction existed and supervised county courts and justice of the peace courts of limited jurisdiction, which were created by the original California Constitution of 1849 and the California Judiciary Act of 1851.

Historically, judges have been and continue to be appointed or elected to sit in a specific county though the title and authority are as a California state judge. The jurisdiction and authority of the judge is to hear matters that occur within the assigned county. Logic suggests that CCP §166 was passed to be expansive - not restrictive - in order to give clarity to and confirmation of the authority of judges to issue orders from anywhere in the state and not just when the judge is physically present within the assigned county. Travel outside the state in the 1800's was rare and expensive for residents, was difficult and time consuming, and prevented communication except by mail or telegraph where available. Horses were the primary mode of transportation. CCP §166 was passed in 1872during a period when most of the western United States was considered frontier and war with various native American tribes was increasing (i.e., Western Frontier Indian Wars). The transcontinental railroad had only been completed three years prior and there was a financial and railroad crash one year later (1873), which further restricted travel.

California's legislature and judiciary in 1872 dealt with a world in which technology was dramatically different (essentially nonexistent) as compared to today. Electrical service to American homes began in the late 1890s and didn't become prevalent until the period of 1920 to 1935, by which time only 70% of American homes were connected to the electrical utility grid.

Since electrification was obviously not widespread and the internet was unheard of when section 166 was enacted, it did not contemplate or imagine the existence of the internet, satellite communication systems, and cellular phones. Section 166 was amended before the existence, much less the widespread use and reliance on these technological advantages. The current state and reliability of electronic devices has served to be a critical asset to the smooth and efficient operations of the judicial branch throughout the state. It also proved to be critical during the shutdown due to Covid. Cell phones, the internet, Zoom, WebEx applications, and the use of iPads allow judges to be accessible for immediate and constant communication with their home court, police officers seeking warrants, and attorneys. Technology and current statutes permit the issuance of orders from electronic devices without territorial limitations on where the judge can be at the time of issuance. They can be issued (signed) from anywhere in an instant.

By its language, CCP §166 does not bar a judge from exercising all the powers of the office from outside the state, but rather confirms that a judge may exercise those powers anywhere within the state despite being a judge designated with duties and authority within a specific county. Had the legislature deemed it necessary to limit the geographical limitations of the exercise of powers, it would have done so.

California search warrant law

California search warrant (SW) statutes specifically contemplate reviewing and executing warrants electronically and not requiring the physical presence of the judge and officer together for the administration of an oath. In other words, the electronic signing of a SW is permitted, and the issuing judge may also direct another person to sign on his or her behalf (i.e., telephonic authorization if the iPad isn't functioning properly). The statute specifically designates when the warrant becomes a completed original warrant, which is upon the receipt of the SW by the affiant, not when or where the judge signs and issues the SW. The affiant is always going to be within the judge's jurisdiction where the subject matter of the search, arrest or other warrant is present.

Penal Code Section 1526 (PC 1526) governs the signing and issuance of warrants.

There is no language requiring the signing to be in California, or to be in the presence of the affiant to the warrant. The statute does include the following:

● The magistrate's signature can be digital or electronic. (PC 1526 (b)(2)(C)(I)). [This presumes some distance between the magistrate and the affiant.]

● The warrant must note the date and time of warrant (not the location of the signer). (PC 1526(b)(2)(C)(ii)).

● Only when the signed warrant is received by the affiant is it deemed an original warrant. (PC 1526(b)(2)(D)). [Thus, the warrant is not deemed completed or original until in the hands of the affiant. The affiant and situs of the original crimes are located in the county where the judge presides.]

● The legislative history of PC §1526 also confirms the intent of the legislature:

● PC 1528 was amended by AB2710 in 2018. The legislative changes confirm that it was the legislature's intent to require a two-step process before a warrant is considered an original warrant: step one: signing by the magistrate; step two: receipt by the affiant. This legislative amendment confirms that it is not the act of the magistrate in signing which completes a warrant as an original final document; it is the act of receipt by the affiant.

This change underscores the validity of a final warrant after receipt. In all cases involving warrants, orders, rulings, or findings that involved signatures by judges outside California or other jurisdictions, the document was received by an affiant, party, attorney, or court clerk within California (or other jurisdiction - i.e., east coast federal courts & the Crown Court of British Columbia - see discussion and cites below). Each order related to subject matter within that jurisdiction. Therefore, the orders or search warrants were held to be valid.

Penal Code Section 1528 (PC 1528) provides further support for the position that the location of the signing magistrate is not limited by geography.

● The magistrate may orally authorize a peace officer to sign the magistrate's name on a duplicate original warrant. (PC §1528(b))

● The magistrate shall enter on the face of the original warrant the exact time of issuance. (PC §1528(b)) [There is no requirement about the location of the signing of the SW by the magistrate.]

If the location of the magistrate were a requirement, there would be no need for the law allowing the magistrate to direct the officer to sign the magistrate's name. That requirement presumes the absence of the magistrate from the location of the affiant and warrant document as does the law deeming that an original warrant only comes into existence when received by the affiant. By contrast, affidavits submitted to the court in civil proceedings within California require that the declaration contains the date and place of execution (CCP §2015.5 & §2015.6).

Federal search warrant cases

U.S. v. Strother (578 F.2d. 397 (U.S. Court of Appeals for D.C.) (1978) upheld the jurisdictional validity of a search warrant issued for the District of Columbia (DC) by a magistrate appointed for the District who was on after-hours duty from her home in Virginia. In Strother, the court stated simply,

"The general principle that a judicial officer's writ cannot run outside her territorial jurisdiction is a far different thing from saying that in no circumstances can a judicial officer sign outside her jurisdiction a writ which runs within it." Id at 399.

Similarly, Coates v. U.S. 403 A.2d 304, the District of Columbia Court of Appeals, upheld the jurisdictional validity of a search warrant issued for D.C. by a D.C. Supreme Court judge while he was physically in Maryland. In all such cases, the territorial jurisdiction of the case was key, not the geographical territory in which the judge was located at the time of signing. The court in Strother cited Coates, stating,

"Nothing in the statutes or case law which so limits a judge's power to authorize a search warrant as long as execution occurs in the jurisdiction in which the judge is empowered to act." Id. At 401.

These cases, and the authorities cited above support the principle that territorial jurisdiction is determined by whether the crime investigated is one within the territorial jurisdiction of the court, rather than the "territory" where the signing judge is present when it is signed. The "execution" referenced in the above quote relates to the execution or service of the search warrant, a term applying to action taken on the warrant at the place of search.

Canadian Authority

An Associate Chief Justice of the British Columbia Supreme was vacationing in Palm Springs. While there he issued a warrant (authorization) permitting the Royal Canadian Mounted Police (RCMP) to wiretap a phone of two suspects. The jurisdictional validity of the warrant was challenged and was ultimately decided in Her Majesty v. Pilarinos and Clark before the Supreme Court of British Columbia. 2001 BCSC 1690 (2001). The court stated the issue:

"The issue is whether a superior court judge of criminal jurisdiction has the authority to issue an authorization to intercept private communications within his or her province when he or she is physically outside of his or her province. Regardless of whether it was necessary for the Associate Chief Justice to issue the authorization in California, the fact is that he did. I must therefore determine whether he had the jurisdiction to do so." Id at 4/43.

The court found that the alleged offences [sic] took place solely within British Columbia (id at p.5/43). The court found that the wiretap warrant was to take effect within British Columbia. (Id at p10/43). Thus, the question of territorial jurisdiction was satisfied and the court found,

"Associate Chief Justice Dohm had the jurisdiction to issue an authorization [warrant] to intercept private communications for execution in British Columbia, and elsewhere in Canada, while he was in Palm Springs, California." Id at p42/43

American Bar Association opinion

The same issue about territorial jurisdiction was applied to the question of lawyers practicing law while out of state. The American Bar Association answered the question in the same manner as courts have answered the question of a judge issuing orders while outside their state: as long as the matter about which they are acting is one within the territorial jurisdiction of their licensed state, there is no violation. This was especially relevant during COVID, which generated the question and answer. ABA Formal Opinions 495 and 498.

Conclusion

It has been a historical practice by judges within most counties not to require the personal presence of an officer before the magistrate in order to issue a pen and ink search or arrest warrant. In the majority of warrant requests in the days before ready internet access, the law authorized a telephone call in which the judge would direct the affiant to sign for them after taking an oath, in line with Penal Code section 1528. With the advent of cell phones, the call would not depend on a landline or hard-wired electricity. When the internet arrived, instant electronic communication was readily available.

The law transformed to adjust to our modern, technology-based environment. It changed to permit electronic signatures and eliminated the requirement for an oath to be personally taken by the magistrate. These changes accommodated the advent of the iPad for transmitting warrants. In the event of any technological disruption, a judge could still communicate via cell phone or landline and direct/authorize the officer to sign for them, thereby creating the original warrant in the hand of the affiant without the need for a judge's presence. See Penal Code Section 1528.

There is no statutory requirement that the judge be available and physically present "within the state" to have the authority to issue orders or warrants or to personally meet with an officer for the oath and execution of a warrant.

Other than a hypothesized scenario of a complete and simultaneous failure and improbable of all satellite or electronic communication, electricity, landlines, cell phones and iPads (e.g. a nuclear attack) our technological and human innovational resources facilitate communication. The law doesn't mandate that a judge be available to personally meet with an officer in the event of such a catastrophic loss of electronic communication systems. There is no statute, case law, or legislative history to support such a requirement or this rationale.

Remote communication, including court hearings, are commonplace even in our post-pandemic environment. Nevertheless, some courts maintain a policy of requiring the judge to be "within the state" when performing magistrate duties. Although there is no legal authority for this policy, it is within the discretion of a Presiding Judge to establish such a requirement. It cannot, nor should it, be based upon an erroneous understanding of "territorial jurisdiction." With the widespread shortage of judges throughout the state and a dearth of judges willing to serve in the capacity of a Night Magistrate, courts should be open to allowing permissive and flexible travel to maintain continuity of service to law enforcement and the legal community. This sensible approach would be in keeping with Supreme Court & Judicial Council policies and pronouncements that authorized and urged remote hearings, appearances and procedures. Since this issue exists because of antiquated views, it should be addressed by the legislature and our Courts of Appeal through unequivocal language that brings us into the 21st century.