Boyer v. Ventura Cnty., 2d Crim. No. B289919

Decision Date18 March 2019
Docket Number2d Crim. No. B289919
Citation33 Cal.App.5th 49,244 Cal.Rptr.3d 665
CourtCalifornia Court of Appeals Court of Appeals
Parties Bruce BOYER, Plaintiff and Appellant, v. VENTURA COUNTY et al., Respondents.

Joel S. Farkas, Mission Hills, for Plaintiff and Appellant.

Leroy Smith, County Counsel, Roberto R. Orellana, Assistant County Counsel for Defendants and Respondents.


To be elected county sheriff, a person must meet certain law-enforcement experience and education requirements set forth in Government Code, section 24004.3. Bruce Boyer has no law enforcement experience. He filed a petition for writ of mandate to compel respondents, Ventura County, Ventura County Board of Supervisors, and Ventura County Clerk Mark Lunn to put him on the June 5, 2018 Primary Election ballot for county sheriff. ( Code Civ. Proc., § 1085.) The trial court ruled that Government Code section 24004.3 was constitutional and denied the petition. We affirm. As we shall explain, constitutional, statutory, and case-law compel affirmance. We are quick to observe a commonsense reason why appellant cannot prevail. Experience is the best teacher. This is true whether you are a plumber, a teacher, a doctor, or a lawyer. It also applies to being the elected sheriff of a county where there are several hundred deputy sheriffs and several hundred nonsworn personnel to supervise. It does not matter how intelligent you are or if you are acting in good faith. There is a good reason why the Legislature has imposed an experience requirement. To get a "feel" for law enforcement, i.e., coming to a true understanding of it, you must learn about it in the field by doing it. The People of California have been well served by personnel who have worked their way up the chain of command to leadership. Such personnel have years of practical experience.

Although the election has come and gone, resolution of this constitutional issue is appropriate because it is a matter of public interest and likely to recur in the future. ( Rawls v. Zamora (2003) 107 Cal.App.4th 1110, 1113, 132 Cal.Rptr.2d 675 ( Rawls ).)

Procedural History

On February 22, 2018, appellant filed a candidate application to be placed on the ballot for Ventura County Sheriff in the upcoming primary election. Four days later, Lunn advised appellant that he had not submitted documentation establishing appellant's qualifications to run for county sheriff, as required by California Elections Code section 13.5 and Government Code section 24004.3. Appellant responded that the statutes were unconstitutional and that Lunn's refusal to place appellant's name on the ballot denied citizens of their right to vote for elected officials of their own choosing.

On March 27, 2018, appellant filed a mandamus petition "commanding [Lunn] to name, designate, or authorize [appellant] to run as a candidate for the position of Ventura County Sheriff for the June 5, 2018 election." (See Code Civ. Proc., § 1085.) Appellant served the writ petition on April 4, 2018, four days after Lunn was required by federal and state law to submit the ballot materials to the printer. Appellant scheduled a hearing on the petition, five days after the printer deadline for ballot changes. Lunn declared that changing the ballots at that late a date would cost between $800,000 and $1 million, and require that 430,000 sample ballots and 1,105,735 ballot cards be reprinted. Denying the writ petition, the trial court ruled that Government Code section 24004.3 was constitutional and the writ petition was barred by the doctrine of laches.

On appeal, the standard of review on constitutional questions is independent judgment with deference to trial court's underlying factual findings, which are reviewed for substantial evidence. ( People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 514, 128 Cal.Rptr.2d 463.) "[A] statute is presumed to be constitutional and ... must be upheld unless its unconstitutionality ‘clearly, positively and unmistakably appears.’ [Citations.]" ( Hale v. Morgan (1978) 22 Cal.3d 388, 404, 149 Cal.Rptr. 375, 584 P.2d 512.)

Elections Code Section 13.5/Government Code Section 24004.3

As county clerk, Lunn, has a ministerial duty to follow Elections Code section 13.5 which provides that no person shall be considered a legally qualified candidate for sheriff unless he or she has filed a declaration of candidacy accompanied by documentation that the person meets the statutory qualifications to run as county sheriff as set forth in Government Code section 24004.3.1 A ministerial office may not add or subtract language to an unambiguous statute. Section 24004.3 provides that a candidate for sheriff must possess one of five combinations of education and law-enforcement experience. Lunn had no power to declare section 24004.3 unenforceable or refuse to enforce the statute "on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional." ( Cal. Const. art. III, § 3.5 (a); see Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1086, 17 Cal.Rptr.3d 225, 95 P.3d 459 ; Billig v. Voges (1990) 223 Cal.App.3d 962, 969, 273 Cal.Rptr. 91 [applying Cal. Const., art. III, § 3.5 to an elections official].) "The very existence of the statute means it is there to be enforced." (Ibid .)

Legislative Authority To Enact Statutory Qualifications for County Sheriff

Appellant argues that the position of county sheriff is a state office and the Legislature lacks the power to add candidate ballot qualifications for a state office. The argument is based on Wallace v. Superior Court of Placer County (1956) 141 Cal.App.2d 771, 298 P.2d 69 ( Wallace ), disapproved on other grounds in Knoll v. Davidson (1974) 12 Cal.3d 335, 343, 116 Cal.Rptr. 97, 525 P.2d 1273. There, section 69500 required that a candidate for the office of superior court judge be a resident of the county in which he or she is elected for two years preceding the judge's election. ( Id . at p. 772, 298 P.2d 69.) The Court of Appeal concluded that "it was and is beyond the power of the Legislature to add this qualification in view of the fact that the Constitution has established the exclusive qualifications that can be required for the office of superior court judge." ( Id. at p. 774, 298 P.2d 69.)

Relying on Wallace, appellant argues that the state Constitution does not require that county sheriff candidates have prior law enforcement experience. But California Constitution, article XI section 1 (b) states: "The Legislature shall provide for ... an elected county sheriff , an elected district attorney, an elected assessor, and an elected governing body in each county."2 (Italics added.) It is an express power and includes the power to set candidacy requirements for the elected office of county sheriff. "California decisions long have made it clear that under our Constitution the Legislature enjoys plenary legislative powers unless there is an explicit prohibition of legislative action in the Constitution itself. [Citation.]" ( Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 39, 30 Cal.Rptr.3d 30, 113 P.3d 1062.) Stated another way, " "we do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited." [Citation.] ... "[R]estrictions and limitations [imposed by the Constitution] are to be construed strictly, and are not to be extended to include matters not covered by the language used."

[Citations.]" ( County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 284, 132 Cal.Rptr.2d 713, 66 P.3d 718.) Based on appellant's construction of the constitution, the Legislature has the power to "provide for ... an elected county sheriff," ( Cal. Const., art. XI, § 1 (b) ) but lacks the power to prescribe the qualifications for a ballot candidate. "We hesitate to ascribe such shortsightedness to the framers of our Constitution." ( Fitts v. Superior Court of Los Angeles County (1936) 6 Cal.2d 230, 234, 57 P.2d 510.)

Pursuant to California Constitution article XI, section 1 (b), the Legislature enacted section 24009, subdivision (a) which provides that "the county officers to be elected by the people are the ... sheriff ...." It also enacted section 24004.3 which sets forth the qualifications for ballot candidates running for the office of county sheriff. Unlike Wallace , which addressed the election of superior court judges, our state Constitution directs the state Legislature to provide for the election of the office of county sheriff.

Appellant argues that his constitutional claim is similar to Jackson v. State (Colo. 1998) 966 P.2d 1046. There, a Colorado statute required that county sheriffs complete certain training requirements and obtain peace officer certification. ( Id . at pp. 1049-1051.) Jackson was elected Morgan County Sheriff after the 1990 enactment of the Sheriff Training Statute. When Jackson's term of office began in 1995, he lacked peace officer certification and was suspended by the Morgan County Commissioners. ( Id . at p. 1050.) The Colorado Supreme Court held that the Sheriff Training Statute was unconstitutional because the state constitution did not authorize the legislature to impose new and additional qualifications to serve as county sheriff. ( Id . at p. 1051.) "When Sheriff Jackson was elected in 1994, the constitution only required that a county sheriff be a qualified elector and a resident of the county for the one-year period preceding his election. [Citation.] [¶] ... [T]hese constitutional qualifications were exclusive, and the General Assembly had no authority to impose additional qualifications as a prerequisite to holding the office of county sheriff. [Citation.]" ( Ibid . )

Unlike Jackson , our state Constitution empowers the Legislature to provide for the election of county sheriffs and to set minimum qualifications for sheriff candidates. ( ...

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