Shirey v. L. A. Cnty. Civil Serv. Comm'n

• Decision Date: 21 August 2013
• Docket Number: B238355
• Court: California Court of Appeals Court of Appeals
• Parties: Mark SHIREY, Plaintiff and Appellant, v. LOS ANGELES COUNTY CIVIL SERVICE COMMISSION, Defendant; Los Angeles County Sheriff's Department, Real Party in Interest and Respondent.

216 Cal.App.4th 1

156 Cal.Rptr.3d 517

Mark SHIREY, Plaintiff and Appellant,

v.LOS ANGELES COUNTY CIVIL SERVICE COMMISSION, Defendant;

Los Angeles County Sheriff's Department, Real Party in Interest and Respondent.

B238355

Court of Appeal,

Second District, Division 8, California.

May 6, 2013

Review Denied August 21, 2013

See 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 64 et seq.

APPEAL from a judgment of the Superior Court of Los Angeles County. James C. Chalfant, Judge. Reversed and remanded with directions. (Los Angeles County Super. Ct. No. BS130036)

Ronald Talmo and Scott D. Hughes for Plaintiff and Appellant.

Hausman & Sosa, Jeffrey M. Hausman, Larry D. Stratton, and Vincent C. McGowan for Real Party in Interest and Respondent.

KARLAN, J.^*

Plaintiff and appellant Mark Shirey, a former deputy sheriff, was discharged in 2009 by his employer, real party in interest and respondent Los Angeles County Sheriff's Department (Department). Plaintiff appealed his discharge to defendant Civil Service Commission of the County of Los Angeles (Commission). The Commission upheld the Department's decision to discharge plaintiff. Plaintiff sought a peremptory writ of mandate in the superior court for reinstatement and backpay. The court denied plaintiff's writ petition.

Plaintiff appeals, contending the Commission abused its discretion, and the trial court's decision is contrary to the law. At the heart of this appeal is a dispute over whether the federal Gun Control Act of 1968, as amended in 1996 (18 U.S.C. § 921 et seq.) prohibited plaintiff from possessing a firearm because of his conviction of misdemeanor battery upon a domestic partner. There is no dispute on appeal that, if plaintiff is prohibited from possessing a firearm under the federal statute, he was properly discharged.

We reverse, finding the trial court incorrectly concluded the United States Supreme Court opinion in United States v. Hayes (2009) 555 U.S. 415, 129 S.Ct. 1079, 172 L.Ed.2d 816 ( Hayes ) established plaintiff's battery conviction qualifies as a “misdemeanor crime of domestic violence” under the Gun Control Act, and thus, the Commission abused its discretion in determining the federal gun possession ban applied to plaintiff.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff began his career as a deputy sheriff with the Department in November 1982. In December 1993, plaintiff was arrested and charged, pursuant to Penal Code section 273.5, with a misdemeanor violation of inflicting corporal injury on his girlfriend with whom he shared a residence. Plaintiff pled not guilty, waived jury and the case proceeded to a bench trial. In June 1994, the court found plaintiff not guilty of violating section 273.5, but guilty of the lesser included offense of simple battery in violation of section 242, a misdemeanor.

Plaintiff was placed on probation for three years. Plaintiff filed a posttrial motion requesting an order granting him relief from the prohibition against possessing and owning firearms under Penal Code section 12021 based on his battery conviction. On June 28, 1994, the court granted plaintiff's motion.

After successfully completing probation, plaintiff petitioned to have his battery conviction set aside pursuant to Penal Code section 1203.4. On March 11, 1997, the court granted plaintiff's petition, ordering as follows: “It appearing to the court from the records on file in this case, and from the foregoing petition, that the defendant herein is eligible for the relief requested. [¶] It is hereby ordered that the plea, verdict, or finding of guilty in the above-entitled action be set aside and vacated and a plea of not guilty be entered, and that the complaint be, and is hereby dismissed. Further, if this order is granted pursuant to [section] 1203.4, the defendant is required to disclose the above conviction in response to any direct question contained in any questionnaire or application for public office or for licensure by any state or local agency, or for contracting with the California State Lottery.”

As a result of these events, the Department suspended plaintiff for 15 days. However, other than this discipline, plaintiff continued to work as a deputy sheriff for the Department and, by all accounts, was an exemplary employee. In 2009, plaintiff was working in Communications and Fleet Management, performing primarily office and administrative-related work. In his May 2009 performance evaluation, plaintiff was described as “a definite asset” to the Department and rated “outstanding,” the highest rating level.

That same month, however, the Department sent plaintiff a letter notifying him of the Department's intent to discharge him, on the ground that federal law prohibited him from carrying a firearm because of his 1994 battery conviction, thereby disqualifying him from continued employment as a deputy sheriff. The notice cited title 18 of the United States Code section 922(g)(9) (hereafter section 922(g)(9)) of the federal Gun Control Act and the then recent United States Supreme Court opinion in Hayes.

Plaintiff responded to the Department's notice, and participated in a hearing pursuant to Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774. During this process, plaintiff advised the Department he had submitted a personal firearms eligibility application to the California Department of Justice, Bureau of Firearms. On June 24, 2009, the Department issued its formal notice to plaintiff discharging him from employment with the Department, stating the same grounds identified in the notice of intent to discharge. Shortly thereafter, plaintiff received notice in the mail from the California Department of Justice that he was eligible under California law to possess and purchase firearms.

Plaintiff appealed to the Commission. Plaintiff and the Department stipulated to the material facts underlying the discharge decision. At the hearing, Chief David Betkey testified. He stated the “single reason” for plaintiff's discharge was the Department's determination, based on advice from County Counsel, that plaintiff was prohibited from carrying a firearm under federal law and therefore was disqualified from being a deputy sheriff as the possession of a firearm is a prerequisite to holding that position. According to Chief Betkey, other than the 1994 battery conviction, there was nothing in plaintiff's personnel history with the Department “that would discredit him or the ... Department, and [plaintiff] had a pretty stellar career.”

The hearing officer issued a decision recommending the Commission reinstate plaintiff as a deputy sheriff and award backpay. The Department filed objections. The Commission voted to sustain the Department's objections and rejected the hearing officer's recommendation for plaintiff to be reinstated. In its final decision of October 20, 2010, the Commission affirmed the Department's decision to discharge plaintiff. The decision stated “[section] 922(g)(9) applies to [plaintiff] and makes it unlawful for him to possess any firearm or ammunition. That by itself, and not any misconduct by [plaintiff,] disqualifies him from employment as a peace officer and as a Deputy Sheriff in the County of Los Angeles.”

Plaintiff filed a petition in the superior court seeking a peremptory writ of mandate directing the Commission to vacate its decision and order the reinstatement of plaintiff as a deputy sheriff, with backpay. Before the hearing on the petition, the trial court issued a tentative ruling denying the petition on the grounds that plaintiff was prohibited from possessing a firearm under the Gun Control Act and his conviction of misdemeanor battery was not expunged. After argument, the trial court changed its ruling and granted plaintiff's petition on the ground that his conviction had been expunged. However, the court subsequently entertained the Department's motion for a new trial, denied the petition and entered judgment in favor of the Commission and the Department. This timely appeal followed.

DISCUSSION

Plaintiff filed his petition in the superior court pursuant to Code of Civil Procedure section 1094.5, contending the Commission's decision to uphold the Department's decision to discharge him was an abuse of discretion, being both unsupported by the evidence and contrary to law. Plaintiff contends on appeal the trial court erroneously interpreted federal law in denying his petition and upholding his discharge.

The Commission's October 20, 2010 order affirming plaintiff's discharge affected a fundamental vested right. Therefore, the trial court was required to, and did, exercise its independent judgment in reviewing the administrative record. (Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th 1122, 1130, 62 Cal.Rptr.3d 69 [agency decision impacting employee's fundamental vested right in his or her job requires exercise of trial court's independent review]; accord, Richardson v. Board of Supervisors (1988) 203 Cal.App.3d 486, 493, 250 Cal.Rptr. 1.) Ordinarily, our task as the reviewing court is to determine whether the trial court's findings (not the administrative agency findings) are supported by substantial evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10, 93 Cal.Rptr. 234, 481 P.2d 242; accord, Davis, supra, at pp. 1130–1131, 62 Cal.Rptr.3d 69.)

However, where, as here, the question presented is a question of law, or of statutory interpretation on undisputed facts, our review of the trial court's decision is de novo. (See Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107–108, 73 Cal.Rptr.2d 523 [interpretation of statutes and rules dealing with employment of public employees, presented on undisputed facts, calls for exercise of independent judgment]; see also Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1349–1350, 49 Cal.Rptr.2d 238 & Roe v. State Personnel Bd. (2004) ...