" The objection may be, as here, in the nature of a demurrer. ( People v. Hale (1965) 232 Cal.App.2d 112, 119-120 [ 42 Cal.Rptr. 533].) Each of these contentions is cast somewhat differently by Steiner and Stanton, but we state their gist.

There is no dispute that "if an official commits a crime in connection with the operation of his office," the crime constitutes "wilful or corrupt misconduct" within the meaning of Government Code section 3060 for which the official "may be removed from his office as the result of an accusation." ( People v. Hale (1965) 232 Cal.App.2d 112, 119 [ 42 Cal.Rptr. 533].) What is at issue here is what mental element is required to show willful misconduct when a crime has not been committed.

Each of the defendants was reelected or reappointed in lieu of an election in November 1985; the accusation was filed in June 1987 during their present four-year terms of office. Defendants' motion to dismiss was based on Thurston v. Clark (1895) 107 Cal. 285, 287-288 [40 P. 435], and its progeny, including People ex rel. Bagshaw v. Thompson (1942) 55 Cal.App.2d 147, 153-154 [ 130 P.2d 237] and People v. Hale (1965) 232 Cal.App.2d 112, 118 [ 42 Cal.Rptr. 533]. Under this line of cases it was settled that the statutes (former Pen. Code, § 758 et seq., and Gov. Code, § 3060) requiring a public officer's removal for misconduct in office should be interpreted to allow removal only during the term of office in which the misconduct occurred.

(1b) Here, persons charged with a felony, either by indictment or by information, and public officers accused of misconduct in office simply are not "similarly situated." Although accusation proceedings in California have been described as criminal in nature ( Thurston v. Clark (1895) 107 Cal. 285, 289 [40 P. 435]; People v. Hale (1965) 232 Cal.App.2d 112, 117-118 [ 42 Cal.Rptr. 533]; see also Pen. Code, § 15; Evid. Code, § 903; Annot. (1932) 81 A.L.R. 1089, 1090-1092), they are unlike felony criminal proceedings in that they protect a different public interest, are governed by separate and distinct procedures, and do not subject the accused to a fine or potential loss of liberty. (3) The primary purpose of an accusation proceeding is to provide the public with an effective means to remove unworthy and unfaithful officials during their current term of office.

" (Italics added.) This statute provides for a special action at law and is neither an indictment ( In re Burleigh, 145 Cal. 35 [ 78 P. 242]; People v. Hale, 232 Cal.App.2d 112 [ 42 Cal.Rptr. 533] ), nor a prosecution for a crime in the ordinary sense of the word ( In re Reid, 182 Cal. 88 [ 187 P. 7]), or an impeachment ( McComb v. Commission on Judicial Performance, 19 Cal.3d, Spec. Trib. Supp. 1, fn. 4, at p. 9 [ 138 Cal.Rptr. 459, 564 P.2d 1]). All subsequent references are to the Government Code, unless otherwise stated.

(See Pen. Code, § 949.) Although an action under that statute is considered a "`[c]riminal proceeding'" for purposes of evidentiary privileges (Evid. Code, § 903), and is sometimes characterized as a "criminal proceeding" for other purposes (e.g., People v. Hale (1965) 232 Cal.App.2d 112, 117 [ 42 Cal.Rptr. 533] [assigning criminal case number on appeal]), it is not viewed as a criminal prosecution in substance. ( Bradley v. Lacy (1997) 53 Cal.App.4th 883, 890 [ 61 Cal.Rptr.2d 919] ["[Prosecution of an accusation under section 3060 et seq. is not a criminal proceeding. [Citations.] . . . [Citation.] [It] is more closely analogous to civil abatement of a nuisance [citation], than to a criminal prosecution"].)

406 (1894); Thurston v. Clark, 107 Cal. 285, 40 P. 435 (1895); State ex rel. Schulz v. Patton, 131 Mo. App. 628, 110 S.W. 636 (1908); State ex rel. Attorney General v. Hasty, 184 Ala. 121, 63 So. 559 (1913); State ex rel. Thompson v. Crump, 134 Tenn. 121, 183 S.W. 505 (1916); State v. Scott, 35 Wyo. 108, 247 P. 699 (1926); Jacobs v. Parham, 175 Ark. 86, 298 S.W. 483 (1927); Barham v. McCollum, 174 Ark. 1179, 298 S.W. 484 (1927); Board of Commrs. of Kingfisher County v. Shutler, Okla., 281 P. 222 (1929); Edson v. Superior Court, 98 Cal.App. 367, 277 P. 194; State v. Blake, 138 Okla. 241, 280 P. 833 (1929); In re Fudula et al., 297 Pa. 364, 147 A. 67 (1929); Montgomery v. Nowell, 183 Ark. 1116, 40 S.W.2d 418 (1931); Rice v. State, 204 Ark. 236, 161 S.W.2d 401 (1942); People ex rel. Bagshaw v. Thompson, 55 Cal.App.2d 147, 130 P.2d 237 (1942); State ex rel. Agee et al. v. Hassler, 196 Tenn. 158, 264 S.W.2d 799 (1954); State ex rel. Chitwood v. Murley, 202 Tenn. 637, 308 S.W.2d 405 (1957); People v. Hale, 232 Cal.App.2d 112, 42 Cal.Rptr. 533 (1965); Letcher v. Commonwealth, 414 S.W.2d 402 (Ky. 1966); State ex rel. Stokes v. Probate Court of Cuyahoga County, 22 Ohio St.2d 120, 51 Ohio Ops.2d 180, 258 N.E.2d 594 (1970); Smith v. Godby, 174 S.E.2d 165 (W. Va. 1970), 42 A.L.R.3d 675; see also House of Representatives 42nd Cong., 3d Sess., Report No. 81, Inquiry as to Impeachment in Credit Mobilier Testimony as contained in Impeachment, Selected Materials, Committee on the Judiciary, House of Representatives, Ninety-third Congress, First Session, United States Government Printing Office, Washington, 1973. This principle is equally applicable to judicial officers who are clearly encompassed within the classification of public officials.

An "action to enforce" does not refer to specific pleadings or steps within the action or a defense. Thus, a demurrer does not constitute "an action to enforce" a right. A demurrer is a pleading that challenges the legal sufficiency of another pleading. ( People v. Hale (1965) 232 Cal.App.2d 112, 120 [ 42 Cal.Rptr. 533].) "The function of a demurrer is to test the sufficiency of a pleading by raising questions of law."

This does not mean that the district attorney cannot apply his professional judgment to an evaluation of an accusation and, in the exercise of that judgment, move the court in an appropriate case to dismiss in furtherance of justice pursuant to Penal Code section 1385. Such a motion would obviously be appropriate in the specific examples cited by defendant: an accusation which is concurred in by less than the required number of grand jurors, is barred by the statute of limitations, is brought against a public official not subject to section 3060, or is not supported by sufficient, admissible evidence (see also § 3066; People v. Hale (1965) 232 Cal.App.2d 112, 120-121 [ 42 Cal.Rptr. 533] [pursuant to section 3066 defendant may object to the legal sufficiency of the accusation on the ground of lack of evidence].) Plaintiff requests that we award attorney fees pursuant to Code of Civil Procedure section 1021.

Since the "misconduct in office" condemned in section 3060 is broad enough to include "any willful malfeasance, misfeasance, or nonfeasance in office" whether or not attended by "criminal intention" ( Coffey v. Superior Court (1905) 147 Cal. 525, 529 [ 82 P. 75]), the definition is sufficiently broad to encompass intoxication during working hours. (See People v. Hale (1965) 232 Cal.App.2d 112, 119 [ 42 Cal.Rptr. 533].) Both sections 3001 and 3060 apply only to public officers during their terms of office.