Penrod v. County of San Bernardino

23 Cal. Rptr. 3d 717, 126 Cal. App. 4th 185, 2005 Daily Journal DAR 1315, 2005 Cal. Daily Op. Serv. 905, 2005 Cal. App. LEXIS 124

• Court: California Court of Appeal
• Decided: January 31, 2005
• Docket: E034908
• Status: Published

Opinions

Opinion

GAUT, J.

1. Introduction

Plaintiff Gary Penrod, the Sheriff of the County of San Bernardino, mounts a facial challenge against Ordinance No. 3875, giving the county board of supervisors the power to remove the sheriff by a four-fifths vote. Penrod’s appeal does not involve any actual effort to invoke the removal power. We hold the ordinance is facially constitutional and affirm the summary judgment in favor of the county.

2. Factual and Procedural Background

In July 2002, the board of supervisors adopted Ordinance No. 3863, involving reprimand and removal of county officers, including the sheriff. Ordinance No. 3863 provides removal for cause may be accomplished by a four-fifths vote of the board: “Any County officer other than supervisor may be removed from office in the manner provided by law; also any such officer may be removed by a four-fifths vote of the Board of Supervisors, for cause, after first serving upon such officer a written statement of alleged grounds for such removal, and giving him a reasonable opportunity to be heard in the way of explanation or defense.”

Causes for removal include: “(1) Flagrant or repeated neglect of duties. [¶] (2) Misappropriation of public property. [¶] (3) Violation of any law related to the performance of the official’s duties, [¶] (4) Willful falsification of a relevant official statement or document.” (San Bernardino County Ord. No. 3863.)

Penrod immediately filed a complaint challenging the validity of the ordinance and seeking an injunction against its enforcement. The trial court granted a preliminary injunction and the board then adopted Ordinance No. 3875, omitting the reprimand provisions of Ordinance No. 3863 but retaining the removal provisions. The second ordinance also clarified that it could “not be applied to interfere with the independent and constitutionally and statutorily designated investigative and prosecutorial functions of the sheriff and the district attorney.”

Ultimately, Penrod filed a first amended complaint in June 2003. The court entertained cross-motions for summary judgment, granted the county’s motion, and denied Penrod’s motion, finding the removal provisions to be constitutional and valid.

3. Discussion

We conduct a de novo review of the grant of a motion for summary judgment, especially since it involves issues of statutory and constitutional interpretation. (Buss v. Superior Court (Transamerica Ins. Co.) (1997) 16 Cal.4th 35, 60, 65 [65 Cal.Rptr.2d 366, 939 P.2d 766]; Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294, 1301 [4 Cal.Rptr.3d 629].)

Penrod repeatedly contends the sheriff is only subject to removal by two methods: recall (Cal. Const., art. II, §§ 13-19; Elect. Code, § 11000 et seq.) or grand jury accusation and trial. (Gov. Code, § 3060 et seq.) He maintains the county charter and Ordinance No. 3875 could allow an “unconstitutional ‘removal’ of the constitutionally mandated, elected sheriff.” Although he concedes the board has not tried or threatened to use its removal powers, Penrod also objects that the ordinance has the potential to interfere with the sheriff’s investigative and prosecutorial functions.

Penrod bears a significant burden to demonstrate the facial, rather than “as applied,” unconstitutionality of a legislative enactment: “A party claiming that a legislative enactment is invalid on its face confronts daunting obstacles to success. The first hurdle to overcome is the bedrock principle that courts are exceedingly reluctant to declare legislation unconstitutional. From this reluctance has come the oft-cited rule that ‘All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their [un]constitutionality clearly, positively and unmistakably appears.’ [Citations.] In implementing these principles courts presume that a Legislature did not intend to exceed the scope of its lawful power. From this presumption has developed the rule that courts will construe statutes in a manner that removes doubts as to constitutionality. [Citations.] Another rule is that a statute ‘cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.’ [Citations.]” (Personal Watercraft Coalition v. Marin County Bd. of Supervisors (2002) 100 Cal.App.4th 129, 137 [122 Cal.Rptr.2d 425].)

In an effort to establish facial unconstitutionality, Penrod equates the county sheriff with a state official like the Governor subject to the same limits on removal procedures. That argument cannot succeed because the county has the legal right and duty to decide removal procedures for the sheriff.

San Bernardino became a charter county in 1913. (Stats. 1913, ch. 33, p. 1652.) The Constitution recognizes “Home Rule,” described as “the right of the people of a charter county to create their own local government and define its powers within limits set out by the Constitution.” (Dibb v. County of San Diego (1994) 8 Cal.4th 1200, 1218 [36 Cal.Rptr.2d 55, 884 P.2d 1003]; see Younger v. Board of Supervisors (1979) 93 Cal.App.3d 864, 869 [155 Cal.Rptr. 921].) The California Constitution requires that a county charter shall provide for an elected sheriff. The Constitution also requires the charter to provide for the “compensation, terms and removal” of the sheriff. (Cal. Const., art. XI, § 4.) Government Code section 24000, subdivision (b), enumerates county officers, including the sheriff. Sections 24009 and 24205 require the sheriff be elected by the county’s electorate. The sheriff is a county officer, not a state official.

That conclusion is not altered by Venegas v. County of Los Angeles (2004) 32 Cal.4th 820 [11 Cal.Rptr.3d 692, 87 P.3d 1], holding that a sheriff, when performing law enforcement functions, is a state actor immune from liability under 42 United States Code section 1983, or other similar cases involving section 1983 immunity. (Brewster v. Shasta County (9th. Cir. 2001) 275 F.3d 803; Pitts v. County of Kern (1998) 17 Cal.4th 340 [70 Cal.Rptr.2d 823, 949 P.2d 920]; County of Los Angeles v. Superior Court (Peters) (1998) 68 Cal.App.4th 1166 [80 Cal.Rptr.2d 860].)

The present case does not involve section 1983 immunity. Furthermore, the subject ordinance specifically prohibits it being applied “to interfere with the independent and constitutionally and statutorily designated investigative and prosecutorial functions of the sheriff.” Therefore, a sheriff could not be removed for performing law enforcement functions.

Nor is Penrod helped by Younger v. Board of Supervisors, supra, 93 Cal.App.3d 864, in which the court found unconstitutional a county charter amendment imposing term limits on county elective officials. Younger does not support Penrod’s proposition that the County cannot provide for an alternative method to remove the sheriff and other county officers in addition to the general state laws which provide for removal from office. In fact, Younger states the opposite, holding that as a general principle, a county may exercise all authority granted it by the state Constitution:

“[I]f a charter provision is properly authorized, then it supersedes general state laws in conflict, but only to the extent it is not limited by the Constitution. [Citation.] For, it is without dispute that local rules or regulations relating to matters which a county is constitutionally empowered to regulate by charter supersede general state laws on the subject, except as to matters covered by general law where ‘(a) the local legislation attempts to impose additional requirements [citations], or (b) the subject matter is one of state concern, and the general law occupies the entire field [citation], or (c) the subject matter is of such statewide concern that it can no longer be deemed a municipal affair [citation].’ [Citations.]

“Therefore, a charter county has only those powers and can enact within its charter only those provisions authorized by the Constitution. These include those enumerated in article XI, section 4, supra. Further, in light of the language of subdivision (h) of section 4, a charter county has all powers provided for counties under the general laws as well, including those powers ‘necessarily implied from those expressed.’ (Gov. Code, § 23003.)” (Younger v. Board of Supervisors, supra, 93 Cal.App.3d at p. 870.)

Ordinance No. 3875 is specifically authorized by article XI, section 4 of the Constitution, subdivision (c). The Attorney General has approved Ordinance No. 3875 as constitutional. (84 Ops.Cal.Atty.Gen. 88 (2001).) Its opinion is entitled to considerable weight. (County of San Diego v. State of California (1997) 15 Cal.4th 68, 103 [61 Cal.Rptr.2d 134, 931 P.2d 312].)

Furthermore, Ordinance No. 3875 is also authorized by and consistent with Government Code section 25303, which provides “The board of supervisors shall supervise the official conduct of all county officers . . . particularly insofar as the functions and duties of such county officers . . . relate to the assessing, collecting, safekeeping, management, or disbursement of public funds. [¶] It shall see that they faithfully perform their duties, direct prosecutions for delinquencies, and when necessary, require them to renew their official bond, make reports and present their books and accounts for inspection.”

Ordinance No. 3875 contains the same limitation as Government Code section 25303: “This section shall not be construed to affect the independent and constitutionally and statutorily designated investigative and prosecutorial functions of the sheriff and district attorney of a county. The board of supervisors shall not obstruct the investigative function of the sheriff of the county nor shall it obstruct the investigative and prosecutorial function of the district attorney of a county.”

In contrast, Penrod cites no authority holding that the Constitution, while expressly directing that a county charter provide for removal of the sheriff, limits the method to recall or a grand jury accusation.

We also reject Pernod’s argument that the amendment of the Constitution in 1978, requiring a sheriff be elected, not appointed, converted the sheriff from a county officer into the equivalent of a state official and that Ordinance No. 3875 vitiates the sheriff’s accountability to the electorate. The voters can still recall the sheriff or the sheriff may be subject to a grand jury indictment and a trial. In addition, Ordinance No. 3875 empowers the board to remove the sheriff only for cause, including neglect of duties, misappropriation, legal wrongdoing and falsification. There may be circumstances about which we decline to speculate, when the board would need to act expeditiously to remove a corrupt county officer rather than wait for a grand jury to convene or a recall election to be held. But that does not mean the voters’ power has been nullified or that Ordinance No. 3875 is facially unconstitutional.

In addition to his objections to the removal provisions of Ordinance No. 3875, Penrod challenges the section of the ordinance that states: “All department heads, elected or appointed, are responsible for the operation of their respective departments. Department heads will be held accountable for the actions of their department personnel including actions which expose the County to risk of loss or actual losses by way of injury to third parties. The Board may determine with respect to a specific incident or loss, that the responsibility for payment of that loss lies with the department and such loss will be paid out of the responsible department’s budget rather than paid out of general County contingency reserves. The purpose of this section is to hold departments responsible for losses which should have been prevented through sound management practices.

“This section shall not be applied to interfere with the independent and constitutionally and statutorily designated investigative and prosecutorial functions of the sheriff and the district attorney.”

Notwithstanding the latter provision, Penrod protests that this section presently “impedes the manner in which the Sheriff carries out his duties and operates his department.” Penrod recognizes that, under Government Code section 25303, the Board is legally authorized and obliged to supervise the sheriff, especially concerning fiscal matters, without affecting the sheriff’s investigative and prosecutorial functions. (Dibb v. County of San Diego, supra, 8 Cal.4th at p. 1210.) That section also states: “Nothing contained herein shall be construed to limit the budgetary authority of the board of supervisors over the district attorney or sheriff.” (Gov. Code, § 25303.) Therefore, it is hard to understand how the sheriff can still assert the ordinance, in all circumstances, impedes his duties and the operation of his department. If, at some point, the board should impermissibly intrude on the sheriff’s investigative and prosecutorial functions, such as happened in Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228 [138 Cal.Rptr. 101], the sheriff can raise a challenge then. But the ordinance on its face is not unconstitutional.

Finally, Penrod urges that, independent of any removal authority, presumably even by recall or grand jury accusation, there must still be compliance with the Public Safety Office Procedural Bill of Rights Act. In his opening brief, he asserts that the ordinance cannot be read to preempt the Public Safety Office Procedural Bill of Rights Act, Government Code sections 3300-3312. In his reply brief, he devotes considerable pages to arguing that the Act and the Ordinance’s removal provision are not in conflict and that removal still could be accomplished while affording the Act’s procedural rights. Again, however, Penrod is visiting the territory of the possible future and not confining himself to the question of the facial constitutionality of the ordinance. Therefore, we decline to speculate on whether someday a four-fifths board vote to remove the sheriff might violate the Public Safety Office Procedural Bill of Rights Act.

4. Disposition

We affirm the judgment and award costs on appeal to the county as the prevailing party.

Richli, J., concurred.