Dibb v. County of San Diego

• Decision Date: 12 December 1994
• Docket Number: No. S035914,S035914
• Citation: 8 Cal.4th 1200,36 Cal.Rptr.2d 55,884 P.2d 1003
• Court: California Supreme Court
• Parties: , 884 P.2d 1003 Randy DIBB, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents; Citizens Law Enforcement Review Board, Intervener and Respondent.

Page 55

36 Cal.Rptr.2d 55

8 Cal.4th 1200, 884 P.2d 1003

Randy DIBB, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents;

Citizens Law Enforcement Review Board, Intervener and Respondent.

No. S035914.

Supreme Court of California,

In Bank.

Dec. 12, 1994.

Bobbitt & Gattey, James M. Gattey and Vicki L. Gilbreath, San Diego, for plaintiff and appellant.

Edwin L. Miller, Jr., Dist. Atty., San Diego, Thomas F. McArdle and James E. Atkins, Deputy Dist. Attys., Michael Capizzi, Dist. Atty., Orange, Maurice Evans, Asst Dist. Atty., Guy Ormes and Burl Estes, Deputy Dist. Attys., as amici curiae on behalf of plaintiff and appellant.

Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, and Valerie Tehan, Deputy County Counsel, for defendants and respondents.

Jordan C. Budd, San Diego, Robin S. Toma, Mark D. Rosenbaum, Los Angeles, John M. Crew, John R. Reese and Julie E. Cohen, San Francisco, as amici curiae on behalf of defendants and respondents.

Procopio, Cory, Hargreaves & Savitch, James G. Sandler, Lynne R. Lasry and David A. Niddrie, San Diego, for intervener and respondent.

LUCAS, Chief Justice.

We granted review to decide whether the County of San Diego may constitutionally amend its charter to provide for the creation of a citizens' board to review public complaints about the county sheriff and probation departments, and vest that board with power to subpoena witnesses and documents. We conclude the County of San Diego has authority under California Constitution, article XI, sections 3, subdivision (a), and 4, subdivisions (e) and (h), to create a citizens review board and to confer the power to issue subpoenas on that board. Accordingly, we affirm the judgment of the Court of Appeal so holding.

I. Facts and Procedure

In November 1990, the voters of the County of San Diego amended their county charter by enacting section 606, which required the county board of supervisors to establish by ordinance a "Citizens Law Enforcement Review Board" (CLERB or the board) and appoint citizens to the board for unpaid terms. (§ 606, subd. (a).)

The charter amendment sets forth the "powers and duties" of the CLERB. (San Diego County Charter, § 606, subds. (d), (f) & (g).) It grants the CLERB "power to subpoena and require attendance of witnesses and the production of books and papers pertinent to its investigations and to administer oaths." (Id. subd. (d).) It then specifies that the board of supervisors shall establish the duties of the CLERB, which may include, inter alia, review and investigation of citizen complaints concerning use of excessive force, discrimination or sexual harassment against members of the public, and false arrest, etc., by employees of the county sheriff's department or the probation department. (Id. subd. (f)(1).) The CLERB is also given authority to investigate, on its own motion, deaths of individuals "arising out of or in connection with actions of peace officers" employed by the sheriff's department or the probation department. (Id. subd. (f)(2).)

Pursuant to the charter amendment, the board of supervisors enacted Ordinance No. 7880, which added article XVIII (entitled "Citizens Law Enforcement Review Board") to the County Administrative Code. Section 340 of the code sets out the "purpose and intent" of the enactment: The CLERB is designed to "advise" and make "recommendations" to the board of supervisors, the sheriff, and the chief probation officer concerning complaints against peace officers employed by the county. The code specifies that the CLERB "will be advisory only and shall not have authority to manage or operate the Sheriff's Department or the Probation Department or direct the activities of any County officers or employees.... The [CLERB] shall not decide policies or impose discipline against officers or employees of the County...." (San Diego County Admin.Code, art. XVIII, § 340.) Thereafter, the code sets out the powers and duties of the CLERB. Section 340.11 defines the CLERB's power to issue subpoenas, ¹ and section 340.9 defines its duties. ²

Plaintiff filed a taxpayer's suit (Code Civ.Proc., § 526a) to enjoin the county from spending funds (stipulated to be $450,000 in the first year) in order to implement the CLERB. He asserted there is no legal authority for the creation of the CLERB, and that in any event it is not legally authorized to issue subpoenas. The trial court rejected plaintiff's arguments and denied his application for a permanent injunction. The Court of Appeal affirmed, concluding the board of supervisors is authorized to create the CLERB and that because the California Constitution, article XI, section 4, subdivision (e), provides that county charters shall specify the "powers and duties" of county officers, the county voters are also permitted to grant to the CLERB, by charter amendment, the power to issue subpoenas.

II. Analysis

A. Charter counties and cities under the state Constitution

Article XI of our Constitution concerns "local government." Section 1, subdivision (a), of that article divides the state into counties, "which are legal subdivisions of the State." Subdivision (b) of that section (hereafter section 1(b)) states: "The Legislature shall provide for county powers ..." and "an elected governing body in each county." A parallel provision--article XI, section 2--grants the Legislature authority to provide for formation of cities, and to "provide for city powers." Under the authority of these sections, the Legislature has enacted hundreds of statutes that regulate the powers and governmental structure of both counties and cities. (See Gov.Code, tit. 3 ["Government of Counties"], § 23000 et seq., tit. 4 ["Government of Cities"], § 34000 et seq., & tit. 5, ["Local Agencies"], § 50001 et seq.)

Article XI, section 3, allows for an alternative governmental structure--independent from the legislative schemes enacted pursuant to sections 1(b) and 2 of article XI--for both counties and cities that adopt a charter for their own governance. Subdivision (a) of section 3 (hereafter section 3(a)) states: "For its own government, a county or city may adopt a charter by majority vote of its electors voting on the question.... County charters adopted pursuant to this section shall supersede any existing charter and all laws inconsistent therewith. The provisions of a charter are the law of the state and have the force and effect of legislative enactments." (Italics added.)

Article XI, sections 4 and 5, concern county and city charters, respectively, and grant to both entities varying degrees of "home rule," i.e., the authority of the people to create and operate their own local government and define the powers of that government, within the limits set out by the Constitution. (See Younger v. Board of Supervisors (1979) 93 Cal.App.3d 864, 869, 155 Cal.Rptr. 921 [hereafter Younger ].)

Article XI, section 4--the provision at issue in this case--addresses the structure and operation of county government. In so doing it both specifies and confines the authority of county charters. It states: "County charters shall provide for: [p] (a) A governing body of 5 or more members.... [p] (b) The compensation, terms, and removal of members of the governing body.... [p] (c) An elected sheriff, an elected district attorney, an elected assessor, other officers, their election or appointment, compensation, terms and removal. [p] (d) The performance of functions required by statute. [p] (e) The powers and duties of governing bodies and all other county officers, and for consolidation and segregation of county officers, and for the manner of filling all vacancies occurring therein." (Italics added.) Section 4 further provides that general laws enacted by the Legislature pursuant to article XI, section 1(b), shall be "superseded by said charter as to matters for which, under this section it is competent to make provision in such charter, and for which provision is made therein, except as herein otherwise expressly provided. " (Cal. Const., art. XI, § 4, subd. (g), italics added.) Finally, subdivision (h) specifies that charter counties have at minimum those "powers" provided by the Legislature, pursuant to section 1(b), to noncharter (i.e., "general law") counties. ³

Whereas charter county "home rule" authority is limited to matters concerning the structure and operation of local government, the version of "home rule" afforded to a charter city is substantially more expansive. First, in comparison with charter counties, article XI, section 5, subdivision (b), gives charter cities even broader authority to structure and organize their government; for example, it grants "plenary authority" over the election, removal, and compensation of municipal officers and employees. (Ibid.) In addition, and unlike charter counties, charter cities are also given broad authority to "make and enforce all ordinances and regulations in respect to municipal affairs.... City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith." (Cal. Const., art. XI, § 5, subd. (a).) There is no corresponding grant of authority and autonomy over the "county affairs" of charter counties. (Johnson v. Bradley (1992) 4 Cal.4th 389, 406, 14 Cal.Rptr.2d 470, 841 P.2d 990; see also Sato, "Municipal Affairs" in California (1972) 60 Cal.L.Rev. 1055, 1115.) Indeed, as noted above, the Constitution requires charter counties to provide for "[t]he performance of functions required by statute." (Art. XI, § 4, subd. (d).))

As Professor Van Alstyne noted in his authoritative review of the predecessors to present article XI, sections 3, 4 and 5: "The principal difference between 'city home rule' and 'county home rule' lay in the fact that since 1896, cities, by express provision in their charters could acquire control of 'municipal...