Bruce Boyer v. Ventura County

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 common

sense 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 non-sworn 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 (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.” (Code Civ. Proc., § 1085.)

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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.) “[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.)

Elections Code section 13.5/Government Code section 240043

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 section 24004.3.1

A

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Elections Code section 13.5 provides in pertinent part:

“(a)(1) Notwithstanding subdivision (a) of Section 13, no person

shall be considered a legally qualified candidate for any of the

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offices set forth in subdivision (b) unless that person has filed a

declaration of candidacy, nomination papers, or statement of

write-in candidacy, accompanied by documentation, including,

but not necessarily limited to, certificates, declarations under

penalty of perjury, diplomas, or official correspondence, sufficient

to establish, in the determination of the official with whom the

declaration or statement is filed, that the person meets each

qualification established for service in that office by the provision

referenced in subdivision (b). [¶] [¶]

(b) This section shall be applicable to the following offices and

qualifications therefor: [¶] [¶] [¶] (3) For the office of county

sheriff, the qualifications set forth in Section 24004.3 of the

Government Code.”

Government Code section 24004.3 provides in pertinent part:

“(a) No person is eligible to become a candidate for the office of

sheriff in any county unless, at the time of the final filing date for

election, he or she meets one of the following criteria:

(1) An active or inactive advanced certificate issued by the

Commission on Peace Officer Standards and Training.

(2) One year of full–time, salaried law enforcement experience

within the provisions of Section 830.1 or 830.2 of the Penal Code

at least a portion of which shall have been accomplished within

five years prior to the date of filing, and possesses a master’s

degree from an accredited college or university.

(3) Two years of full–time, salaried law enforcement experience

within the provisions of Section 830.1 or 830.2 of the Penal Code

at least a portion of which shall have been accomplished within

five years prior to the date of filing, and possesses a bachelor’s

degree from an accredited college or university.

(4) Three years of full–time, salaried law enforcement

experience within the provisions of Section 830.1 or 830.2 of the

Penal Code at least a portion of which shall have been

accomplished within five years prior to the date of filing, and

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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; Billig v. Voges (1990)

223 Cal.App.3d 962, 969 [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 (Wallace), disapproved on other grounds in Knoll v. Davidson

(1974) 12 Cal.3d 335, 343. There, section 69500 required that a

candidate for the office of superior court judge be a resident of the

possesses an associate in arts or associate in science degree, or

the equivalent, from an accredited college.

(5) Four years of full–time, salaried law enforcement

experience within the provisions of Section 830.1 or 830.2 of the

Penal Code at least a portion of which shall have been

accomplished within five years prior to the date of filing, and

possesses a high school diploma or the equivalent.”

All statutory references are to the Government Code unless

otherwise stated

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county in which he or she is elected for two years preceding the

judge’s election. (Id. at p. 772.) 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.)

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.”

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(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 power

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.) 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

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Although this Legislative power dates back over 150

years, the Legislature did not require candidate qualifications for

the office of county sheriff until 1988 when section 24004.3 was

enacted. (Stats. 1988, c. 57, § 1.) California Constitution of 1849,

article VI, section 11, (later superseded by Cal. Const. of 1879)

states: “The Legislature shall provide for the election of a Clerk

of the Supreme Court, County Clerks, District Attorneys,

Sheriffs, and other necessary officers . . . .”

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[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.) 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.)

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

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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. (Cal. Const. art.

XI, § 1(b).) And unlike Jackson, section 24004.3 is not being

applied to forfeit a sheriff’s elected position. Section 24004.3,

subdivision (b) has a savings clause and provides: “All persons

holding the office of sheriff on January 1, 1989 shall be deemed to

have met all qualifications required for candidates seeking

election or appointment to the office of sheriff.” We reject the

argument that section 24004.3 conflicts with or is preempted by

the California Constitution.

First Amendment

Appellant argues that section 24004.3 violates the First

Amendment in that it restricts the pool of sheriff candidates to

law enforcement personnel and excludes civilian viewpoint from

being heard. A similar claim was made in Rawls, supra, 107

Cal.App.4th 1110. There, a would-be write-in candidate (Rawls)

for Santa Clara County Sheriff was an advocate of the Second

Amendment right to bear arms and lacked section 24004.3 law

enforcement experience. Rawls sought election as sheriff on a

civilian platform that promised to limit denials of concealed

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weapon permits. (Id. at p. 1114.) He claimed the current sheriff

had a reputation for denying virtually all concealed weapon

permit applications. (Ibid.) The Santa Clara County Registrar of

Voters advised Rawls that write-in votes for Rawls would not be

counted because his nomination papers did not satisfy the section

24004.3 candidate qualifications for county sheriff. (Id. at

p. 1113.) Rawls sued on the theory that section 24004.3 violated

the First Amendment right to free speech and the Fourteenth

Amendment right to equal protection of the laws. (Id. at p. 1114.)

Rejecting the claim, the Court of Appeal held that “section

24004.3 is evenhanded – it is applicable to all candidates. It is

politically neutral – it simply requires candidates to have law

enforcement experience.” (Id. at pp. 1116-1117.)

Appellant argues that section 24004.3 violates his First

Amendment Right to run for and hold an elected public office.

(See, e.g., Zeilenga v. Nelson (1971) 4 Cal.3d 716, 719-721) [fiveyear

residency requirement to run for elected position of county

board of supervisors invalid].) “‘Qualifications for office must

have a rational basis, such as age, integrity, training or, perhaps,

residence. . . . If a classification is employed in prescribing

qualifications, it must be nondiscriminatory and “based on a real

and substantial difference having reasonable relation” to the

object sought to be accomplished by the legislation. . . .’ (Italics

ours.)” (Id. at p. 721.)

Appellant claims that candidacy for a public office is a

fundamental right and requires a compelling overriding state

when imposing candidacy qualifications to access a public ballot.

But not all facets of the electoral process are subject to strict

scrutiny review. Candidacy for public office is not a fundamental

constitutional right to which a rigorous standard of review

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applies. (Clements v. Fashing (1982) 457 U.S. 957, 963.) “Far

from recognizing candidacy as a ‘fundamental right,’ we have

held that the existence of barriers to a candidate’s access to the

ballot ‘does not of itself compel close scrutiny.’ [Citation.]”

(Ibid.)

Strict scrutiny analysis was rejected in Rawls, supra, 107

Cal.App.4th 1110 wherein a would-be write-in candidate for

sheriff lacked the qualifications to be on the ballot. The First

Amendment claim was predicated on plaintiff’s free speech rights

and the rights of voters to cast their ballots effectively. (Id. at

p. 1114.) Plaintiff claimed that section 24004.3 restricted the

pool of sheriff candidates to law enforcement personnel and

excluded the civilian viewpoint from being heard. (Ibid.) The

Court of Appeal applied a balancing test to resolve the tension

between a candidate’s speech rights and the state’s interest in

preserving the fairness and integrity of the voting process. (Id. at

pp. 1115-1116.) It concluded that section 24004.3 “does not

significantly impair access to the ballot – there are five broad

disqualifications, which embrace people of varying experience.

The section does not stifle speech or dictate electoral outcome in

any sense.” (Id. at p. 1117.)

The Rawls’ court viewed the constitutional claim as “a

qualification case in the sense that the law at issue relates to

eligibility to be elected rather than electoral procedure.

[Citation.]” (Rawls, supra, 107 Cal.App.4th at p. 1115, fn 3.) The

court made clear that its holding applied to challenges based on

First Amendment rights asserted on behalf of potential voters

and would-be candidates. (Ibid.) “There can be no doubt that the

state has a strong interest in assuring that a person with

aspirations to hold office is qualified to administer the

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complexities of that office. [Citation.] And the authority of the

state to determine the qualifications of their most important

government officials is an authority that lies at the heart of

representative government. [Citation.]” (Id. at p. 1117.)

We concur and adopt the same analysis here. There is no

merit to the argument that Legislature exceeded its authority

pursuant to the California Constitution in enacting section

24004.3 or that the statute violates the First Amendment rights

of would-be candidates or the voters at large.

Laches

Appellant contends there was no unreasonable delay in

filing the writ petition or prejudice to support the finding that the

action was barred by the doctrine of laches. Lunn knew about

the writ petition when it was filed on March 27, 2018, yet went

forward with printing the ballots. Appellant asserts that

printing and mailing corrected ballots at a cost of $800,000 to $1

million would not prejudice Lunn. But Lunn’s declaration states

the delay would result in “severe and adverse consequences,

including voters having different materials before them . . . . Any

changes made after April 16, 2018, would result in overseas

voters not having the same sample ballot materials as local

voters.” Lunn further states: “For the June 5, 2018, primary

election, the deadline required in order to comply with state and

federal law was March 31, 2018, four days before I was served

with the Petition in this matter.” (Italics added.)

Appellant chose to sleep on his right to timely challenge

section 24004.3 well after his candidate statement was rejected

by Lunn. Over the next few weeks, appellant issued press

releases and appeared at city council meetings and before the

Ventura County Board of Supervisors, threatening to sue Lunn.

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The trial court reasonably concluded that the appellant’s delay in

filing and prosecuting the writ petition prejudiced Lunn, other

candidates running for public office (federal, state and local) on

the primary ballot, and the voters at large. The law helps the

vigilant, not those who sleep on their claimed rights. (Civ. Code,

§ 3527.)

The judgment (order denying mandamus petition) is affirmed. Costs on appeal are awarded to respondents.