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
Dec. 12, 1994.
8 Cal. 4th 1200
Bobbitt & Gattey, James M. Gattey and Vicki L. Gilbreath for Plaintiff and Appellant.
Edwin L. Miller, Jr., District Attorney (San Diego), Thomas F. McArdle and James E. Atkins, Deputy District Attorneys, Michael Capizzi, District Attorney (Orange), Maurice Evans, Assistant District Attorney, Guy Ormes and Burl Estes, Deputy District Attorneys, 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, Robin S. Toma, Mark D. Rosenbaum, John M. Crew, John R. Reese and Julie E. Cohen as Amici Curiae on behalf of Defendants and Respondents.
OPINION
LUCAS, C. J.—We granted review to decide whether the County of San Diego may constitutionally amend its charter to provide for the crеation 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
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 Diegо 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
Plaintiff filed a taxpayer‘s suit (
A. Charter counties and cities under the state Constitution
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,
As Professor Van Alstyne noted in his authoritative review of the predecessors to 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 affairs’ independent of general laws pertaining thereto. [Citations.] The scope of home rule available to cities thus was coextensive with the purview of the broad and general expression, ‘municipal affairs‘. No such general grant of authority to incorporate provisions relating to ‘county affairs’ was included in [the prior version of present section 4] with respect to county charters. Surely, if the proponents of county home rule sincerely
Plaintiff makes much of the above described distinction between the grant of autonomy over “municipal affairs” to charter cities and the corresponding absence of any such grant of autonomy over “county affairs” of charter counties. As we shall explain, however, the distinction is irrelevant in this case, because the constitutional authority for defendants’ enactment and implementation of the CLERB rests, not on any purported “county affairs” power of charter counties, but instead on the long-standing grant of structural and operational “home rule” powers found in
B. Authority for creation of the CLERB, and for its subpoena power
As noted above,
1. Creation of the CLERB
Defendants assert
Plaintiff asserts section 25303 gives the board of supervisors only the authority to monitor the fiscal conduct of county officers. Although the statute stresses the need for such supervision, it is plainly not so limited. Indeed, as one court has observed in a different context, the statute permits the board of supervisors to “supervise county officers in order to insure that they faithfully perform their duties . . . .” (People v. Langdon (1976) 54 Cal.App.3d 384, 390 [126 Cal.Rptr. 575].)4 Indeed, the operations of the sheriff‘s and probation departments and the conduct of employees of those departments are a legitimate concern of the board of supervisors. As the Court of Appeal observed below: “Review of citizen complaints and peace officer-related deaths might suggest the need for new or different types of training for personnel in the two departments which the [board of supervisors] would have to fund. Politically the [board of supervisors] might be concerned about public distrust of investigations conducted by either the sheriff or district attorney and hopeful that investigations by a group not aligned with law enforcement would restore public confidence, particularly if that group reached conclusions consistent with the sheriff and district attorney.”
Plaintiff next asserts the very existence of the CLERB is preempted by or otherwise in conflict with state law. He argues the CLERB will inevitably obstruct and infringe on the investigative functions of the sheriff (see
We conclude that under section 25303, the board of supervisors has a statutory duty to supervise the conduct of all county officers. (See People v. Langdon, supra, 54 Cal.App.3d 384, 390.) Moreover,
2. The grant to the CLERB of the power to issue subpoenas
No such statutory authority exists for the grant to the CLERB of the power to issue subpoenas. As рlaintiff observes, although the Legislature has granted the power to issue subpoenas to various county entities—e.g., county boards of supervisors and their committees (
It is unnecessary to decide whether the Legislature has preempted the field of entities entitled to issue subpoenas, because, as explained post, pages
As noted above, charters adopted by counties “for [their] own government” “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.” (
Although, as noted above, charter counties lack the “municipal affairs” authority of charter cities, under the above quoted constitutional provisions they nevertheless share much of the authority exercisable by charter cities over the structure and operation of their local government. Accordingly, to the extent the power to issue subpoenas is properly grounded on the county‘s authority to provide for the “powers and duties” of its local officers and the operation of its local government, it is within the competence of the charter.
Plaintiff advances a number of arguments against the conclusion that the grant to the CLERB of power to issue subpoenas is within the competence of the county charter. As we explain below, none of the arguments is meritorious.
a. “County officers”
Plaintiff suggests members of the CLERB are not “county officers” within the meaning of section 4(e), and hence the charter may confer no “powers or duties” on them. He relies on City Council v. McKinley (1978) 80 Cal.App.3d 204, 210 [145 Cal.Rptr. 461], for the proposition that to qualify as publiс officers, there must be a “delegation to the officer of some portion of the sovereign functions of government either legislative, executive, or judicial [citation].” (Italics added.)
As the Court of Appeal acknowledged in McKinley, supra, our own decision in Coulter v. Pool (1921) 187 Cal. 181 [201 P. 120] “has become the leading authority in this area.” (City Council v. McKinley, supra, 80 Cal.App.3d at p. 210.) In Coulter, supra, we reconsidered and rejected ancient authority that broadly defined the term “public officer,” and reached the following conclusions:
Shortly thereafter, in Spreckels v. Graham (1924) 194 Cal. 516 [228 P. 1040] we reaffirmed our holding in Coulter v. Pool, supra, 187 Cal. 181. In doing so, we explained that “two elements now seem to be almost universally regarded as essential” to a determination of whether one is a “public officer“: “First, a tenure of office ‘which is not transient, occasional or incidental,’ but is of such a nature that the office itself is an entity in which incumbents succeed one another . . . , and, second, the delegation to the officer of some portion of the sovereign functions of government, either legislative, executive, or judicial.” (Spreckels v. Graham, supage, 194 Cal. at p. 530, italics added.)
It seems clear that the italicized phrase quoted above from Spreckels v. Graham, 194 Cal. at page 530, and repeated in City Council v. McKinley, supra, 80 Cal.App.3d at page 210, is in fact, and was intended to be, consistent with the similar language employed in our leading case on the issue, Coulter v. Pool, supra, 187 Cal. at page 187. In other words, a public officer (or a county officer) is one who, inter alia, is delegated a public duty to exercise a part of the governmental functions of the political unit for which he, as agent, is acting. That test is plainly met here. The members of the CLERB are delegated the duty to hold hearings, administer oaths and issue subpoenas, all in order to investigate, on behalf of the board of supervisors, complaints about the official conduct of employees of the county sheriff‘s and probation departments. Whether this authorization of investigative power is denominated a delegation of “some portion of the sovereign functions of government” (Spreckels v. Graham, supra, 194 Cal. at
b. “Specific” constitutional authority for powers
Plaintiff relies on dеcisions stating that charter counties have only such authority as is “expressly” conferred by the Constitution or by statute. (See Younger, supra, 93 Cal.App.3d 864, 870 [“counties . . . have independently only such legislative authority that has been expressly conferred by the Constitution and the laws of the state“]; County of Sacramento v. Fair Political Practices Com. (1990) 222 Cal.App.3d 687, 690 [271 Cal.Rptr. 802] [quoting and relying exclusively on Younger, supra]; Cawdrey v. City of Redondo Beach (1993) 15 Cal.App.4th 1212, 1221, 1222 [19 Cal.Rptr.2d 179] [same].) Plaintiff observes that the challenged power to issue subpoenas is not granted (specifically or by implication) by statute. He thus concludes that defendants’ charter amendment is invalid because our state Constitution nowhere specifically grants to citizens review boards the power to issue subpoenas.
Plaintiff reads too much into the cited cases. They do not require that our Constitution expressly confer the specific authority under challenge. When Younger is read in context, it becomes apparent that the court did not intend the strict rule advanced by plaintiff.
It is apparent that the test actually applied in Younger was not whether the Constitution expressly conferred the spеcific challenged power; instead, the inquiry focused on whether, given the Constitution‘s text, the challenged power was “authorized.” Indeed, apart from the passage in Younger relied on by plaintiff, this latter formulation was used by that court throughout the rest of its discussion. (See, e.g., Younger, supra, 93 Cal.App.3d at pp. 869-870, quoting Whelan v. Bailey (1934) 1 Cal.App.2d 334, 335-337 [36 P.2d 709]; see also 93 Cal.App.3d at p. 870 [“Therefore, a charter county has only those powers and can enact within its charter only those provisions authorized by the Constitution.“].) We agree that this is the appropriate inquiry, and hence reject plaintiff‘s claim that because the Constitution does not expressly grant to charter counties the specific authority to give its county officers power to issue subpoenas, charter counties have no authority to do so by charter amendment pursuant to the general “powers and duties” clause of article XI, section 4(e) of the Constitution. Instead, as the Younger court impliedly recognized, the appropriate inquiry is whether the charter amendment is “authorized” by the Constitution. In making this assessment, it is necessary to determine whether the power to issue subpoenas is an appropriate power under section 4(e). This brings us to plaintiff‘s next point.
c. Scope of section 4(e)
Plaintiff asserts the Constitution‘s authorization for the provision by charter of the “powers” of county officials cannot broadly apply “to any power the county electorate may choose to provide.” This is undoubtedly true; there are unquestionably numerous kinds of powers that the charter may not constitutionally grant to the CLERB or to other county officers. The question is whether the power authorized in this case is within the constitutional authority of the charter.
We held this proviso void, as being “inconsistent with and repugnant to the general provision of that portion of the section of which it is a part” (Reuter, supra, 220 Cal. at p. 320), because, we reasoned, if general laws controlled the charter‘s provision of “powers and duties” relating to county officers, then the thrust of the provision for establishment of powers and duties through the county charter would be defeated. We did “not think the framers of the amendment, nor the people of the state who ratified it, contemplated any such absurd result.” (Id. at p. 321; see also id. at pp. 322-324.)
The powers and duties involved in Reuter included the duty to “take charge of the highways” in the county and the power to “employ all men, teams, watering cars and all help necessary to do the [road] work . . . .” (Reuter, supra, 220 Cal. at p. 319.) We upheld the charter provision, stating: “[A] county charter may provide for powers and duties of county officers although such powers and duties, as fixed by the charter, may differ from and be in conflict with the powers and duties of such officers as provided by the general laws of the state.” (Id. at p. 326.) We concluded by quoting the predecessor to current article XI, section 3(a), and noting that to the extent it is authorized by the Constitution, a county ” ‘charter . . . shall become the organic law thereof relative to matters therein provided . . . and shall supersede all laws inconsistent with such charter relative to the matters provided in such charter.’ ” (220 Cal. at p. 226, quoting Cal. Const., art. XI, former § 7½, par. 17.)
Although Reuter, supra, 220 Cal. 314, construed the predecessors to present article XI, sections 4(c) and 3(a), it remains an accurate construction of those provisions. (See
Viewed in this context, we cannot conclude that the power conferred on the CLERB is outside the legitimate authority of the charter under article XI, section 4(e) of the Constitution. The power to issue subpoenas is one that is often conferred throughout the nation on boards such as the CLERB. (Petterson, Police Accountability and Civilian Oversight of Policing: An American Perspective, in Complaints Against the Police: The Trend to External Review (Goldsmith edit. 1991) pp. 259, 287-289 [11 of 21 civilian review boards in large cities possess power to issue subpoenas]; see also Brown v. City of Berkeley (1976) 57 Cal.App.3d 223, 236 [129 Cal.Rptr. 1] [charter city citizens police review board granted power to issue subpoenas];8 Richmond Mun. Code, § 3.54.080(b)(8) [same]; Sаnta Cruz Mun. Code, § 2.41.220(a)(i) [same].)9 Moreover, the power to issue subpoenas is reasonably necessary to the full accomplishment of the legitimate goals of the
d. Nature of power to issue subpoenas
Plaintiff (and amici curiae on his behalf) advance a related argument that the power to issue subpoenas is inherently different from other legitimate powers that might be granted to a nonjudicial body, because it is a potent tool that may, in certain circumstances, be employed in an abusive and oppressive manner, “especially when it may be indiscriminately delegated and the subpoena is not returnable before a judicial officer.” (See Cudahy Packing Co. v. Holland (1942) 315 U.S. 357, 363-364 [86 L.Ed. 895, 899, 62 S.Ct. 651] [Fair Labor Standards Act bars Administrator of Department of Labor from delegating subpoena power].) The present case does not concern delegation, but an express grant, by charter amendment, of power to issue subpoenas. In any event, we note that the high court quickly retreated from Cudahy by confining it to its facts (Fleming v. Mohawk Co. (1947) 331 U.S. 111 [91 L.Ed. 1375, 67 S.Ct. 1129]), and two years later Congress overruled Cudahy. (See Donovan v. National Bank of Alaska (9th Cir. 1983) 696 F.2d 678, 681.)
In the same vein, plaintiff relies on a similarly distinguishable and ancient case, Burns v. Superior Court (1903) 140 Cal. 1 [73 P. 597], in which we upheld a statute insofar as it permitted a notary public to issue a subpoena compelling attendance of a witness at a deposition, but declared the statute unconstitutional insofar as it purported to authorize the notary public, on his own, to adjudicate and punish as contempt the disobedience of his subpoena. (Id. at pp. 12-14.) Burns thus stands for the established proposition that, unless the Constitution expressly or by necessary implication provides otherwise, only a court may adjudicate and punish contempt. The CLERB has no power to enforce or adjudicate punishment for violation of its subpoenas
Nevertheless, we do not doubt the legitimacy of plaintiff‘s concern about possible misuse of the power to issue subpoenas. In this context, however, the potential for abuse does not appear to be any greater than that which exists when various other nonjudicial county entities exercise their established powers to issue subpoenas (see, е.g.,
III. Conclusion
As we observed in Reuter, supra, 220 Cal. 314, in which we construed the predecessor to article XI, sections 3(a) and 4(e) of the Constitutiоn, “[t]he general purpose [of the provision] was to give local self-government or county home rule to counties of the state by means of charters. . . . [¶] The people of the state in the adoption of this amendment had good cause to believe, and evidently did believe, that they were thereby providing a means whereby they might have home rule in their local and county affairs, including the right, in the words of the amendment, to provide for the powers and duties of their county officers. The amendment as adopted by them, when construed as a whole, is not only susceptible of such a construction, but cannot be given any other reasonable interpretation.” (220 Cal. at pp. 326, 327.) We agree with the Younger court‘s similar observation that “home rule,” as that term was used in Reuter, supra, 220 Cal. 314, and as that concept is reflected in article XI, sections 3(a) and 4(e) of our state Constitution, contemplates the right of the people of a charter county to create their own local government and define its powers within the limits set out by the Constitution. (Younger, supra, 93 Cal.App.3d at p. 869.) Construing the constitutional provisions in light of that purpose, we conclude the
Mosk, J., Arabian, J., Baxter, J., George, J., and Werdegar, J., concurred.
KENNARD, J., Concurring.—I agree with the majority that the County of San Diego acted within its authority under the state Constitution when it created the Citizens Law Enforcement Review Board (hereafter Board), and vested it with power to subpoena witnesses and documents. I also agree that the mere existence of the Board and its subpoena power does not obstruct either the county sheriff‘s investigative functions or the district attorney‘s investigative and prosecutorial responsibilities in violation of
But I would add a note of caution: because this case presents only a facial challenge to the charter amendment that created the Board, no evidence is before us showing how the Board has used its subpoena power to investigate suspected misconduct by peace officers or jail personnel, and we have not been asked to decide the legality of the Board‘s use of its subpoena power in any particular situation. Therefore, our decision should not be misconstrued as evidencing lack of concern with the not inconsiderable risk of conflict between the Board‘s investigations and those undertaken by the county sheriff or district attorney, particularly when those investigations are conducted simultaneously. Whether the Board‘s use of its subpoena power amounts to illegal interference, for instance, with the sheriff‘s investigation into allegations of personnel misconduct (
With this caveat, I join the majority opinion.