Beck v. County of Santa Clara

• Decision Date: 16 September 1988
• Docket Number: No. H003922,H003922
• Citation: 251 Cal.Rptr. 444,204 Cal.App.3d 789
• Court: California Court of Appeals Court of Appeals
• Parties: Tom BECK, et al., Plaintiffs, Cross-Defendants and Appellants, v. COUNTY OF SANTA CLARA, et al., Defendants, Cross-Defendants and Respondents; Robert Winter, as Sheriff, etc., Cross-Complainant and Appellant. Robert WINTER, as Sheriff, etc., Petitioner, v. COUNTY OF SANTA CLARA et al., Respondents; Tom BECK et al., Real Parties in Interest.

Page 444

251 Cal.Rptr. 444

204 Cal.App.3d 789

Tom BECK, et al., Plaintiffs, Cross-Defendants and Appellants, v. COUNTY OF SANTA CLARA, et al., Defendants, Cross-Defendants and Respondents;

Robert Winter, as Sheriff, etc., Cross-Complainant and Appellant.

Robert WINTER, as Sheriff, etc., Petitioner, v. COUNTY OF SANTA CLARA et al., Respondents; Tom BECK et al., Real Parties in Interest.

No. H003922.

Court of Appeal, Sixth District, California.

Sept. 16, 1988.

Review Denied Nov. 23, 1988.

Christopher D. Burdick, William H. Sortor, Carroll, Burdick & McDonough, San Francisco, Robert J. Logan, San Jose, for appellants.

John P. O'Brien, Orange, for amicus curiae in support of appellant.

Richard S. Whitmore, Richard C. Bolanos, Monna P. Radulovich, Whitmore, Kay & Stevens, Palo Alto, Joseph Remcho, Kathleen J. Purcell, Julie M. Randolph, Remcho, Johansen & Purcell, San Francisco, Donald L. Clark, County Counsel, Robert A. Weers, James Rumble, Deputy County Counsel, San Jose, for respondents.

Dwight L. Herr, Santa Cruz County Counsel, Santa Cruz, Thomas F. Casey, III, San Mateo County Counsel, San Mateo, Robert Westmeyer, Napa County Counsel, Napa, Michael D. Ott, Madera County Counsel, Madera, Max E. Robinson, Fresno County Counsel, Fresno, Alan K. Marks, San Bernardino County Counsel, San Bernardino, David E. Whittington, El Dorado County Counsel, Placerville, William Jas. Murphy, Colusa County Counsel, Colusa, Denis A. Eymil, Kings County Counsel, Hanford, James A. Curtis, Nevada County Counsel, Nevada City, Susan Roff, Butte County Counsel, Oroville, for amicus curiae in support of respondents.

AGLIANO, Presiding Justice.

By resolutions the Board of Supervisors of Santa Clara County created a new County Department of Detention ("DOD"), to be headed by a Board-appointed county official, and transferred to it the management of county jail facilities formerly under the jurisdiction of the sheriff, Robert Winter. Winter, the Deputy Sheriff's Association of Santa Clara County ("DSA"), and DSA president Tom Beck (also a county resident, taxpayer, and sheriff's sergeant) sued for a declaration that the resolutions were invalid and for an injunction against their implementation. The superior court gave judgment for the defendant county. Winter, the DSA, and Beck appealed. We issued a stay pending appeal; Winter subsequently petitioned this court for a writ of mandate to enforce the stay, alleging the county had violated the stay order. We consolidated the appeal and the writ petition. We conclude that the judgment must be affirmed and, accordingly, that the writ petition is moot.

The transfer of authority over the jail to the new county department is authorized by a statute, Government Code section 23013. ¹ A central issue is the constitutional validity of that statute.

Among the challenges to the County's creation of the Department of Detention was the contention that the County violated state constitutional provisions by effecting the transfer of authority by urgency measure and thus denying a referendum. That argument has become moot, however, because after the judgment for County had been appealed and we had temporarily stayed implementation of the measure, County submitted the issue to the voters and allowed Beck to do likewise. Competing measures "A" and "F" appeared on the ballot in the June 1988 primary election, and Santa Clara County voters affirmed the County's proposition, Measure "A," while defeating the Sheriff's Measure "F." Measure "A" accomplishes the originally intended transfer of authority over the county jail by county charter amendment. Beck's contention that County had a legal duty to submit the matter to the voters is therefore moot.

While the central issue in this case is the constitutionality of Government Code section 23013, additional contentions include the following: (1) DSA claims that even if the transfer of authority over the jail is otherwise valid, the proposed transfer of deputy sheriffs to new positions as employees of DOD infringes certain of their employment rights and casts doubt whether such transferred officers will retain their "peace officer" status which entitles them to carry firearms. (See Pen.Code, §§ 830 et seq.) (2) A further issue is whether the transfer of authority, if otherwise valid, applies to both sentenced and unsentenced prisoners. (3) Finally, we must decide Winter's petition for writ of mandate claiming that County has violated our temporary stay of the transfer of authority over the jail which was intended to preserve the status quo pending appeal.

We have decided, for reasons to be stated, that the transfer of authority over the county jail to the DOD is valid and that no further stay is needed. We have also decided to deny the petition for writ of mandate for these reasons: (1) the dissolution of the stay eliminates the need to reconcile two concurrent authorities over the jail; (2) Beck sought no contempt citation for the alleged violation of our stay, hence no sanctions issues are before us, and (3) the record shows that questions of interim jail administration should have been raised in the tribunal presently presiding over the jail conditions litigation. (Branson et al. v. Winter et al., Santa Clara County Superior Court No. 78807. See generally the decision in Wilson v. Superior Court (1987) 194 Cal.App.3d 1259, 240 Cal.Rptr. 131.) Accordingly, the judgment of the trial court will be affirmed, and the petition for mandate denied.

I LEGALITY OF TRANSFERRING THE JAIL OPERATION FROM THE ELECTED SHERIFF TO AN APPOINTED DEPARTMENT HEAD

The principal issue in this case is whether the county voters may transfer control of the county jail from an elected sheriff to an appointed county department head, and if so, may that transfer take place during the sheriff's term of office.

Although a statute, Government Code section 23013 (quoted in full in fn. 1) expressly authorizes transfer of control of a county jail to a county-created department of corrections, the sheriff claims that statute conflicts with the California Constitution. The Constitution explicitly provides that a county sheriff shall be elected. (Cal. Const., art. XI, §§ 1, subd. (b) and 4, subd. (c).) ² The sheriff argues that these provisions making his office elective prevent transfer of any of his duties to an appointed official.

A. Infringement of Electoral Power

A California Supreme Court decision has held that the powers and duties of an elected official may not be transferred to an individual not elected by the voters. (People v. Kelsey (1868) 34 Cal. 470.) The Kelsey decision held that when an individual was elected Sheriff of San Joaquin County, at a time when that office also included the functions and designation of Tax Collector, the Legislature could not, during his term, transfer the tax collector functions to one not elected to the position.

Two opinions of the Attorney General have considered the Kelsey decision. (3 Ops.Atty.Gen. 247 (1944); 33 Ops.Atty.Gen. 180 (1959).) One of these concludes that the Legislature cannot assign the duties of an elected officer--whether or not he is a constitutional officer--to another official before expiration of the incumbent's term. (33 Ops.Atty.Gen., supra, at p. 182.) "[A] board of supervisors may not devolve [sic ] the duties of an officer required by a general law to be elected upon another official before the expiration of the officer's term." (Ibid.)

The above Attorney General's Opinion appears to interpret Kelsey to hold that an elected official has a vested interest of some kind in the duties of his office. In our view, however, the Kelsey decision articulates a narrower rule, that once the electorate has voted for a public officer, having in mind that he will perform a particular bundle of duties, then it would impermissibly negate that exercise of elective choice to take those duties from the official and give them to one not elected to perform them. Kelsey protects not the incumbent's right to perform specific duties, but the voters' exercise of power at the election. Nothing in Kelsey contradicts the great weight of precedent holding that an elected official such as Sheriff Winter here has no personal vested right to the performance of his duties, separate from the rights of the people who elected him. (See, e.g., Martello v. Superior Court (1927) 202 Cal. 400, 261 P. 476; Deupree v. Payne, (1925) 197 Cal. 529, 538, 241 P. 869; Butterworth v. Boyd (1938) 12 Cal.2d 140, 82 P.2d 434; but cf. Olson v. Cory (1980) 27 Cal.3d 532, 178 Cal.Rptr. 568, 636 P.2d 532.)

The Attorney General's opinion also noted that an ordinance assigning the duties of a nonelected marshal to an elected sheriff was valid under iKelsey because the ordinance required submission to the voters of the judicial district for approval. "Since the people of the district voted to abolish the office of marshal and confer the duties thereof upon the sheriff, the action of the Legislature and of the board of supervisors has not deprived the people of their choice; they have expressed their choice by approving the ordinance." (33 Ops.Atty.Gen., supra, at p. 182.) Similarly here, even if the Kelsey decision might be interpreted as preventing the supervisors from transferring duties away from the elected sheriff to a nonelected county department head, the submission of the matter to a popular vote cured any defect. The voters have ratified the transfer of function away from the official whom they elected. Consequently there is no infringement of electoral power such as was forbidden by Kelsey.

B. Sheriff Is a Constitutional Officer

We next consider to what extent the constitutionally created office of sheriff may be modified, whether by the electorate or the Legislature. As a general proposition the Legislature may not abolish or change a constitutional office except as the Constitution itself expressly provides. (See generally 63A Am.Jur.2d (1984) ...