Palo Alto, CA
COUNTY OF SACRAMENTO
Alexander E. Rawls,
Bill Jones as the Secretary of State, the State of California and Dwight Beattie, as the Registrar of Voters of Santa Clara County,
No. 98 CS 00514
ANSWER TO DEFENDANT JONES'S ANSWER AND TO DEFENDANT BEATTIE'S DEMURRER AND OPPOSITION TO PLAINTIFFS AMENDED COMPLAINT AND PETITION FOR WRIT OF MANDATE.
Hearing Date: March 13th, 11:00 A.M., Dept. 23.
Judge: Hon. James T. Ford.
Plaintiff answers the defendant's pleas in answer and opposition by re-alleging all the facts in his amended opening brief, except as updated below, and by reasserting his points and authorities in support, supplemented by the following rejoinders.
1. As of March 11th, plaintiff believes he has completed all of the requirements for nomination to the office of Sheriff of Santa Clara County except that his declaration of meeting the statutory requirements for the office was signed in the affirmative conditional on the courts ruling in his favor in the present contest. (See Exhibit E attached.)
2. Plaintiff apologizes for naming Bill Wilson (a personal friend) as the Secretary of State. He meant to name Bill Jones.
3. In support of his earlier statement of fact that in the last eleven years 24 states have passed "shall issue" concealed carry permit laws, stripping sheriffs of the discretionary power to deny gun permits and evidencing a conflict of viewpoints between the law enforcement establishment and The People on this point, plaintiff submits the code sections of "shall issue" laws from the three abutting states as exhibit F.
Plaintiff reasserts his opening argument and rejoins the defendants answers as follows:
Both defendant's note that the district attorney (an elected officer) must also meet substantial statutory qualifications and assert this as precedent for the qualification of law enforcement background for sheriffs. Without conceding the constitutionality of the requirements for district attorney, the requirement of law enforcement background for sheriffs has none of the same justifiability.
The requirement that district attorneys be members of the bar does not privilege an arm of government in the election process. The restrictions would be analogous only if it were required that district attorneys come from the ranks of prosecutors. An argument for a strong state interest in such a restriction can be made exactly the same as the argument for sheriff's having law enforcement background. There is a state interest in both kinds of office-holders being prepared in the specific duties of a very important job. Nevertheless, it is obvious that restricting district attorneys to current and recent prosecutors would be unconstitutional. The harms to first amendment rights (the accountability of government to the people) would be vast, the compellingness of the qualification would be questionable (as in the case with the sheriff's restriction challenged here) because other viewpoints (defense attorneys and citizens) are equally relevant, and the necessity test can never be met because there is always the alternative of adverting to the competence of the people.
Defendant Jones' answer also introduces as a precedent the requirement chiefs of police have substantial law enforcement background. But chiefs of police are appointed officers who serve at the pleasure of elected superiors. They are not top executive officers who wield their own discretionary power but have power delegated to them by executive superiors elected by The People (a mayor or a board of supervisors). No requirement of law enforcement background is imposed on these executive superiors who ultimately control the discretionary power of the office of chief of police.
The most insidious arguments cited by defendant Jones are those originating with the Sheriff's Association's statement in support of the original passage of code section §24004.3 (exhibit 3 in defendant Jones's answer). As the plaintiff asserted in his original statement of facts, he decided to run for sheriff because he believes that the existing law enforcement establishment is pursuing an improper monopoly of power. It now turns out that the Sheriff's Association is implicated in the legislative analysis provided by the Office of Senate Floor Analyses (defendant Jones' exhibit 2) as the moving force behind §24004.3. This analysis cites the "sponsors" as stating "it is little enough to require that the person in charge of the Sheriff's Department to have the same minimum training as that required by all his subordinates." This is almost an exact quote from the Sheriff's Association statement of support for §24004.3.
It is not "little" at all to require that the sheriff have the same training as his subordinates. Such a requirement demands that the candidates for sheriff gain their fitness for office by coming up through the ranks, as department careerists. But there are many other ways that a person can become fit to be sheriff. A district attorney works hand in hand with the sheriff and knows far more about policy requirements in the sheriff's department and about how deputies need to be trained than minimal law enforcement background confers. Yet this far more qualifying background is excluded by the requirement of law enforcement background. Similarly, someone like myself, who has studied criminal law and policy for ten years and has brilliance in the field is fully fit to be sheriff, while someone with minimum law enforcement background does not begin to be fit.
Instead of being "narrowly drawn" to exclude only the unqualified (as defendant Jones admits is a criterion when harms to first amendment rights are severe, p. 4, line 26) the requirement of law enforcement background is sweepingly exclusive, excluding all ways that people can attain fitness for the office of sheriff except one: climbing the ranks.
Indeed, the statutory qualification accomplishes nothing but to exclude people who attain fitness by other means, and the Sheriff's Association concedes as much, admitting that the statutory qualifications do not mean that a person is qualified at all, stating: "we believe the requirements to be eligible to be elected to the office of sheriff would be much higher than a basic certificate; however, this should be the minimum standard."
Why? It does not qualify anyone, but excludes every other route to qualification but rising through the ranks. It is an instrument of monopoly power and assault on the accountability of government to the people and nothing but. The arguments made by defendant Beattie are subject to this same critique. Defendant Beattie notes that the sheriff must be qualified to administer the correctional facilities, know the penal code and constitutional law and be prepared to handle the whole breadth of duties (page 2, lines 18 et. seq.). The statutory requirement does not begin to establish such qualifications. If the need to perform these duties can justify requiring background in these areas, the logical conclusion is that only the sheriff's top lieutenants should be allowed to be candidates. Indeed, why not a monarchical rite of succession?
Because in a republic we are committed to going the other way. We open up the ballot to all who have attained fitness, via whatever background, by adverting to the competence of the people to choose between the candidates campaigning for their votes.
Defendant Jones asserts that two years of law enforcement background is a "slight burden" (p. 6, line 14), and indeed it is, for those who have gained fitness for the office by coming up through the ranks. For everyone else, and for our system of government, it is fatal. Law enforcement officers have a fundamentally different relation to crime than do civilians. They are the hunters, not the hunted. In twenty four states The People have had to take the drastic step of stripping their sheriffs of discretionary power over gun rights because the difference of viewpoints between The People and law enforcement is so profound.
At such a juncture, the injury to first amendment rights from setting law enforcement up as an exclusively privileged class in the election process is literally without precedent in our nation's history. It must end here and now.
Wherefore plaintiff makes the same prayers as before, except since he has now paid the filing fee he prays that it be reimbursed (rather than waived).
The defendants assert that the available alternative is signatures in lieu. Plaintiff was deprived of this alternative by the need to spend his time fighting code section 24004.3 in court.
I am the plaintiff in the above-entitled action; I have read the forgoing answer and know the contents thereof; the same is true of my own knowledge.
Dated:__________, 19___ ____________________
Alexander Rawls, Plaintiff
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