Rawls v Jones and Beattie

Alexander Rawls

Palo Alto, CA

Pro per





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

Amended Complaint for Declaratory relief and petition for Writ of Mandate.

To determine the validity of California Government Code §24004.3, ballot qualifications for office of county sheriff.


Hearing Date: March 13th, 11:00 A.M., Dept. 23.




Table of Contents


Question presented


Statement of the case


Statement of the facts




Prayers for Judgement





Exhibit A

Copy of Government Code §24004.3

Exhibit B

Lott and Mustard study

Exhibit C

Campaign platform

Exhibit D

How to Safely Decimate Crime


Alexander Rawls

Palo Alto, CA

Pro per





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

Amended Momorandum of Points and Authorities in support of Plaintiff's Complaint for Declaratory Relief and Petition for Writ of Mandate.


Hearing Date: March 13th, 11:00 A.M., Dept. 23.

Question Presented:

Does California election code §24004.3 violate the California and U.S. Constitutions [U.S. Constitution, 1st, 2nd, and 14th Amendments; Cal. Const. Article I, §§ 1,2,3,7] when it prohibits The People from electing one of themselves, instead of a current or recent member of the government law enforcement establishment, to serve as County Sheriff?


Statement of the Case

Plaintiff Alexander Rawls is a voter in the County of Santa Clara and, except for the requirement of law enforcement background, is eligible to be a candidate for the office of Santa Clara County Sheriff in the primary election set for June 2nd of this year. He has gathered sufficient nomination signatures to be placed on the ballot and is prepared to offer filing fee and signatures in lieu as necessary to complete the nomination process. Plaintiff seeks declaratory relief and Writ of Mandate to remove the requirement of law enforcement background to be a candidate for the office of County Sheriff.


Statement of the Facts

For the last year, plaintiff has been contemplating running for County Sheriff on the charge that the existing law enforcement establishment is pursuing an improper monopoly of power over The People, particularly in regards to gun rights. In one sentence: the proper role of government is to serve the people, yet instead of helping The People to defend themselves, local law enforcement has been using its discretionary power to systematically disarm the people so that they cannot defend themselves. When plaintiff went to pick up the new candidates information package on January 8th of this year, he discovered that this very law enforcement establishment that he planned to campaign against is granted absolute privilege as a class in the election process. A representative of The People is not even allowed to run against them!

The qualification imposed by California Government Code §24004.3 is that candidates for the office of County Sheriff must possess a combination of years of recent experience as a law enforcement officer and formal education. (A true copy of the offending code is attached as exhibit A.) The minimum required law enforcement experience is one year for those who possess a master's degree in any subject. Plaintiff is pursuing a Ph.D in economics at Stanford and has not taken a master's degree along the way so the requirement in his case would be two years of recent law enforcement experience. All the law enforcement positions that are eligible to count towards the required law enforcement experience are within branches of government within the State of California. This ballot restriction was passed by the California State Legislature and signed into law on march 28th 1988. It became the law on January 1st 1989. The ordinance has since its enactment been, and now is, in full force and effect and is enforced by the defendant.

How powerfully this denial of ballot access impacts my (the plaintiff's) and other people's First Amendment rights (our right to speak and assemble so as to participate in the political process and have our views represented) is determined by the extent to which there is in fact a conflict of viewpoints between members of the law enforcement establishment and the citizenry who they are supposed to serve, particularly over matters that are left to the discretionary power of the Sheriff. Accordingly, relevant to the statement of facts in this case are a few facts about the efforts of local law enforcement to use their discretionary power in highly contested fashion, not to help The People to defend themselves, but to secure a monopoly of power over them.

Sections 12050 through 12054 of the California State Penal Code devolve on Police Chiefs and County Sheriffs the legal authority to administer The People's right to bear arms, granting them discretion to issue Concealed Carry Weapons (CCW) permits to applicants who can show "good moral character," "good cause," and local residency. All current Bay Area Police Chiefs and County Sheriff's use this discretionary power, not to achieve the constitutionally stated desideratum of "a well regulated militia," but to annihilate the right to bear arms entirely, issuing blanket denials of CCW applications. Palo Alto Police Chief Chris Durkin proudly lets it be known that in his thirteen years on the job he has never issued a single CCW to anyone civilian who is not an ex-police officer. The East Palo Alto Police Department, despite the fact that East Palo Alto had the highest per capita murder rate in the nation in 1992, has issued exactly one CCW in its 12 years of existence. Departing Santa County Sheriff Gillingham declares on his Department's web page that he does not consider self-defense to be a "good cause" to be allowed to carry gun (despite the fact that "defending life and liberty" is declared in the first section of the California State Constitution to be an "inalienable right").

Broad evidence of a conflict between the biases of law enforcement and the views of The People is manifest in the fact that in the last eleven years 24 states have adopted "shall issue" gun permit laws. The people in these states got so fed up with Police Chiefs and County Sheriffs refusing to faithfully administer gun rights that they stripped them of their discretionary power, forcing Sheriffs to issue permits to any applicant not disqualified by history of crime or mental incompetence. (The states that have adopted "shall issue" laws since 1987 are: Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Louisiana, Maine, Mississippi, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee,Texas, Utah, Virginia, West Virginia, and Wyoming. Washington has had "shall issue" since 1961, and Vermont does not require gun permits at all, making 26 states where the right to carry a gun is not subject to the discretion of any executive. )

It will also be relevant, for determining whether the state has a compelling interest in limiting representation to the law enforcement establishment's viewpoint, to note that comprehensive statistical analyses of this vast national experiment in requiring Sheriffs to issue gun permits shows conclusively that allowing citizens to carry arms when they feel the need leads to very significant declines in all categories of violent crime, including gun crime. (See Exhibit B, "Crime, Deterrence, and Right-to-Carry Concealed Handguns," by Lott and Mustard, Journal of Legal Studies, January 97.) The wisdom of The People is vindicated: making the world safe for criminals by disarming the law abiding citizens makes the world less safe for the law abiding.

When The People have already revolted against the misuse of discretionary power by law enforcement in half of the States of the Union, the conflict between The People and the law enforcement establishment can no longer be considered hypothetical. It has been proven to be endemic.

That there would be such a conflict should come as no surprise. Perhaps the most relevant fact, regarding the conflict of interests between The People and the government that is supposed to represent them, is the fact that the founders of this nation laid their entire plan of government so as to resist the tendency of government to try to amass and hold tyrannical power over The People. That is why we have the scheme of separation of powers. The different branches of government must be accountable to each other, and to The People, or the political rights of The People -- to have government "of the people, by the people and for the people" -- are lost. If the members of an arm of government itself are set up as a privileged class in the electoral process, the accountability of government to The People is fundamentally compromised. When it can also be shown, as in the present case, that government has powerful tendencies at this precise juncture to contravene the will of the people, this loss of political rights is grievous indeed. Which brings us to:



The channel of precedent through which first amendment political rights are protected is found in the Supreme Court's interpretation of the Fourteenth Amendment's guarantee of "equal protection." (The corresponding California State rights are listed in Article I of the State Constitution, sections 2 and 3 (freedom of speech and assembly) and 7 (equal protection).) No right to vote is stated in the U.S. Constitution, but whatever qualifications for voting are imposed must satisfy equal protection and this limits what qualifications can be imposed. (Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2nd 169, 1966. Relevant quote in footnote below.)

At the time of Harper, the Court already had in place a system for interpretting equal protection that it had set forth in Korematsu v. United States (323 U.S. 214, 1944). In Korematsu the Court demarked "suspect classifications" (beginning with racial classifications) which, when they appeared in the law could be presumed to do harm to equal protection and hence would automatically trigger "the most rigid scrutiny" or "strict scrutiny" on equal protection grounds. Once strict scrutiny is triggered, the Court held that a classification must to be "necessary" to a "compelling governmental interest" in order to pas constitutional muster. A typical formulation of the "suspect classification" doctrine can be found in Chief Justice Burger's majority opinion in Palmore v. Sidoti, 466 U.S.__, 104 S.Ct. 1879, 80 L.Ed.2nd 421, 1894, where he wrote:

Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the person, dictates the category. Such classifications are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be 'necessary [to] the accomplishment' of its legitimate purpose.

In Harper (above) the Warren Court took the "strict" or "rigid" scrutiny test for equal protection that grew out of Korematsu and applied it, not to "suspect classifications," but to restrictions on "fundamental rights and liberties" generally. Subsequent rulings declined to expand broadly on the opportunity to find fundamental rights and liberties that would trigger strict scrutiny, but some narrow such "fundamental interests" have become firmly established, particularly interests in enfranchisement and access to the ballot (the subject of this complaint).

In cases specifically regarding access to the ballot the Court has looked for the content of "fundamental interests" that trigger "strict scrutiny" in the political rights of the First Amendment: the right to political expression and the right of association. This line of precedent began with the case of Williams v. Rhodes, (393 U.S. 23 1969) where independent political parties protested legislation that required them to gather more nomination signatures to get on the ballot than the major parties were required to gather. Constitutional scholar Gerald Gunther summarizes the Courts ruling in Williams as follows:

Justice BLACK's majority opinion stated that these requirements "made it virtually impossible for a new political party, even though it has hundreds of thousands of members, or an old party, which has a very small number of members," to gain a place on the ballot. As a result, the two established major parties had "a decided advantage over any new parties struggling for existence." He found strict scrutiny appropriate. Here the state scheme placed "unequal burdens" on "two different, though overlapping, kinds of rights -- the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters [to] cast their votes effectively." He found that the state had "failed to show any 'compelling interest' which justifie[d] imposing such heavy burdens" on such "precious freedoms." Encouraging a two party system to promote compromise and political stability could not support giving the two major parties a permanent monopoly.

Note that, while strict scrutiny is automatically imposed when a "suspect classification" appears in the law, there is an additional criterion that must be met before "strict scrutiny" is imposed when "fundamental interests" are at stake. In Williams, Justice Black specifically took account of the magnitude of the harms to fundamental interests (in this case called "precious freedoms") in deciding to impose the strict scrutiny test. The First Amendment harms that are protested in the present case are unprecedentedly grievous and unjustified

In terms of Justice Black's analysis, they impose both of the "unequal burdens" that he referred to above. Here the unequal burdens are not between different political parties (Sheriff is a non-partisan office), but between the citizens and the law enforcement establishment. If outsiders are banned, then those who seek to represent the interests of The People against aggrandizing government are banned. If The People cannot vote for one of their own, they suffer a loss to their rights to associate for the advancement of political beliefs, and they lose the right to cast their vote effectively.

But to see how truly grievous and perverse the assault on First Amendment rights is in this case, just turn to the obvious rebuttal: that ballot restrictions, at least for executive office, cannot be construed as obstructing the will of The People because they were enacted by The People's representatives in the legislative branch. I acknowledge this process. Indeed, I contend that the legislature knew exactly what it was doing. Instead of directly restricting gun rights, which is an almost sure-fire way to get voted out of office, the legislature has chosen to restrict gun rights by proxy, intentionally setting up the election process to favor a class of government functionaries (the law enforcement establishment) who tend to be antagonistic to gun rights (to secure their own monopoly on force of arms). But The People's representatives are not The People. The most fundamental separation of power in our system of government is the separation of power between The People and government entire. The legislature, as an imperfect representative of The People, is granted vast powers, but the most fundamental thing it cannot do is shield government from accountability to The People.

Chief Justice Warren spoke to this issue in Kramer v. Union Free School District No. 15 (395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, 1969), where the Supreme Court stuck down a law limiting enfranchisement. Speaking for the Court, Chief Justice Warren asserted that "[a]ny unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government" and must be subject to "close and exacting examination." Elaborating, he explained that "[the] presumption of constitutionality and the approval given 'rational' classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality."

It is true that the ballot access restriction I am complaining about is not a restriction on candidates for the legislative branch, and can be contended not to undermine the legislature's legitimacy. But there are still limitations on how these representatives are allowed to operate. The legislature cannot effect its will by shielding the executive branch of government from accountability any more than it can shield itself from accountability. One branch of government cannot do the other's dirty work for it, and each still be held pure just because neither is doing its own dirty work. Notice that Chief Justice Warren was inclusive when he called for close and exacting examination of legislative acts that impose "unjustified discrimination in determining who may participate in political affairs or in the selection of public officials." He used the broad phrase "political affairs" and did not limit his critique to barriers to legislative office. He was not just scrutinizing attempts by legislatures to shield themselves from accountability, but their attempts to shield any part of government from accountability, and he held all such provisions to be most threatening and dangerous to the equal protection of First Amendment rights, demanding the strictest scrutiny.

This fits into the framework established in Williams, where the magnitude of harms to "precious freedoms" is what triggers strict scrutiny. In Kramer, Chief Justice Warren found that attacks on the accountability of government to the people are the greatest violations, and that is what is involved in my complaint. Establishing current and recent members of an arm of the government itself as an absolutely privileged class in the electoral process is such a blatant shielding of that arm of government from accountability as to show audacious contempt for the very principle of accountability. It constitutes a grotesquely unjust and unjustifiable discrimination in determining who may participate in political affairs. Indeed, as far as I have been able to determine (through my unprofessional researches of case law), there is literally no precedent for such a direct attack on the accountability of government to The People! It is imperative that such a direct assault on accountability be subjected to strict scrutiny.

It might also be rebutted that the burden imposed on candidates by the requirement of years of experience in law enforcement is not such a high hurdle for candidates such as myself. I beg to differ. Having to give up two years of my life before The People are allowed to consider my viewpoints is an extreme burden. Indeed, it accomplishes exactly what it intends. Only those who have pursued law enforcement as a career are allowed to vie for leadership of the law enforcement establishment. Civilian oversight is effectively outlawed, regardless of whether The People would favor it.

A limit on acceptable burdens was established by the Supreme Court in Lubin v. Panish (415 U.S. 709 1974) where it struck down a California ballot access requirement calling for a fee to be paid equal to 1% percentage of the salary of the office sought. Chief Justice Burger acknowledged the "importance and legitimacy" of the objective of the requirement: "protecting the integrity of the electoral system from the recognized dangers of ballots listing so many candidates as to undermine the process of giving expression to the will of the majority," but he struck down the requirement because it employed: "means which can operate to exclude some potentially serious candidates from the ballot without providing them with any alternative means of coming before the voters." (To meet this objection, California subsequently complemented its fee system with the option of submitting signatures in lieu of the fee -- at a rate of 25 cents worth of fee for each signature, I can proudly attest).

I am not just a potentially serious candidate. I am a serious candidate, and I would definitely be excluded by the requirement of law enforcement background. (In case you would like to judge my seriousness, I have attached as Exhibit C a copy of my campaign platform.) If the present filing fee, absent an alternative, constitutes a burden that can unjustifiably exclude serious candidates, then having to give up two years of one's life, being many times greater a burden, must be considered that much more untenable.

One further rebuttal I would like to anticipate is any contention that, since executive officers only execute the laws, they lack discretionary power, so that representation of the will of the people is not at issue. (If there is no important scope for different viewpoints to be expressed in the execution of this office, nothing is lost by fundamentally limiting what viewpoints can be represented.) It does seem to be true that wider scope for ballot access restrictions is allowed in races for executive rather than legislative office on the grounds that executive officers lack discretionary power, but this rationale does not apply in the case of the office of County Sheriff because Sheriffs have vast discretionary power to set law enforcement priorities. In particular, relevant to the current case, they have full discretionary power under the law to administer gun rights (see Statement of Facts). Thus representation of the will of the people is very much at stake in elections for Sheriff. At the very least, the political rights of The People which are at stake in any race for administrative office are equal in magnitude to the discretionary powers of the office. In actuality they are even larger because The People also have an interest in the competent and uncorrupt administration of non-discretionary power, where civilian oversight can also be relevant.

Also, notice again that Chief Justice Warren, speaking for the Court in Kramer, made no distinction between restrictions that undermined accountability of legislators to The People and restrictions that undermine the accountability of executive officers to The People. Whatever wider restrictions may be allowed in ballot access for executive office as compared to legislative office, they must not extend to assaults on the accountability of government to the people and certainly not by such grotesque means as limiting candidates for office to current and recent members of the very government that is to be held accountable!

Since the magnitude of the harms to First Amendment rights is pertinent, I would like here to remind the court of the evidence I presented in my Statement of Facts regarding the great division in this nation between law enforcement and The People on the subject of gun rights. This division is particularly large in Santa Clara because departing Sheriff Gillingham has been one of the worst offenders in issuing blanket denials of gun permits. As a member of the National Rifle Association I regularly attend the montly meetings of the National Rifle Association Member's Council of Silicon Valley, which has one of the largest memberships of any chapter in California and has a regular attendance of over 100. When I told the group that I wanted to run for Sheriff on a gun rights platform and was suing the state for ballot access the whole room cheered. If I win this suit, within a week I'll have the biggest campaign organization in the race. Within a month I'll have every tenth person in the county behind me. Come the election I'll win in a landslide. The People want their gun rights. It is that simple. And I am the only candidate willling to offer their gun-rights to them.

No candidate with law enforcement background has stepped forward who is willing to stand up for gun rights, even though, also noted earlier, the criminological evidence is absolutely clear: the framers of the Constitution had it right. Making society safe for criminals by disarming the law abiding citizens is not the way to make society safe from predation either by common criminals or tyrants. In spite of the criminological logic and evidence, members of the law enforcement establishment are unwilling to give up their monopoly of power. Thus the ban on civilian candidates for Sheriff has in fact excluded representation of the pro-gun rights viewpoint, which so many citizens embrace. The injury to First Amendment rights in this case is not just hypothetical but is clear and proven. It occurs at a juncture where where the interests of government itself (which are supposed to carry no weight) and the interests The People (which are supposed to carry all the weight) are in heated conflict throughout the nation. When government tries to secure victory over The People in such a contest by banning the civilian viewpoint from the ballot, the urgency of judicial remedy cannot be overstated.

Also relevant is the fact that the views I wish to put before The People with my candidacy involve constitutional rights. I claim that the existing law enforcement establishment is pursuing an improper monopoly of power, unconstitutionally withholding the Second Amendment "right of The People" not just to "keep" but also to "bear" arms. Surely it is not only the Courts that have a role in upholding the Constitution, but also the legislature, the executive, and The People themselves. Thus the banning of civilians from candidacy for Sheriff violates more than just equal protection of the First Amendment rights of The People. It also violates all the Constitutional rights that their First Amendment rights would be used to promote. Not only does the complained about ballot restriction undermine accountability at a point of great conflict between government and The People, but the nature of the conflict is itself over constitutional rights.

How many miles high must the magnitude of injury to "fundamental interests" be piled? How many times over must the argument for strict scrutiny be made airtight? To add to the overkill, or take advantage of it, I would like to mention one other route to securing strict scrutiny in this case, a route which perhaps ought to be the standard that is set here for the future.

What distinguishes the "suspect classifications" trigger for strict scrutiny is that as soon as enactment of a "suspect classification" is challenged in court, strict scrutiny is automatic because the use of such classifications can automatically be presumed to do grievous harm to rights to equal protection. Race, for instance, when enacted as a legal classification, can automatically be presumed to great harm to constitutional values because it is not possible for the law to discriminate on the basis of race without doing great harm to equal protection, which was adopted into the Constitution most specifically to ban racial discrimination. Such harms can only be justified (if they can ever be justified) to prevent greater harms to constitutional interests elsewhere. There is a strong case to be made that favoring members of an arm of government itself in the electoral process automatically involves great harms, because it threatens to undo the entire scheme of representative government. If The People cannot elect one of their own to exert their will over government then their ability to hold government accountable is severely compromised. Any step in this direction clearly does great harm, which, to be allowed, must be necessary to prevent greater harms to other constitutional values. Thus strict scrutiny should be automatic as soon as this "suspect classification" is encountered. There is no precedent to cite in this direction for the startling reason that this particular grievous injury to constitutional rights seems to be literally unprecedented! I can find no other example where current or recent members of an arm of the government itself are the only ones allowed to run for a particular office. A good way to nip this new route to tyranny in the bud would be to mark now that it meets the criterion for being a "suspect classification": it can automatically be presumed to incur great harm.


With strict scrutiny secured there is no way that the requirement of law enforcement background can survive that scrutiny. To do so it must be "necessary" to a "compelling" state interest (see Palmore, Williams and Kramer above) but it meets neither of these hurdles. First, the necessity test can never be met because there is available a sufficient alternative in the competence of The People to judge the qualifications of candidates for themselves. If We The People are competent to evaluate the qualifications for Commander in Chief without being "helped" by having our choices limited to military men, then we are certainly competent to evaluate the qualifications of candidates for Sheriff. Whatever defects in qualifications get past the ballot access restrictions can be remedied by The People when they exercise their judgement about whom they think best qualifies to receive their vote. The availability of this recourse to the competence of The People puts strict limit on the amount of injury to "fundamental interests" can be justified in the name of "helping" the people to better represent themselves. The great harms at stake in this case cannot begin to be justified.

Whether there is a "compelling state interest" at stake also depends on this dubious concept of "help." The legitimate grounds for ballot access restrictions, according to precedent, are to facilitate and improve accountability and representation of the will of The People. We saw this in the Lubin case cited above, where Chief Justice Burger acknowledged the "importance and legitimacy of protecting the integrity of the electoral system from the recognized dangers of ballots listing so many candidates as to undermine the process of giving expression to the will of the majority."

Going a little farther in the same direction, the Court in Williams (above) mentions a state interest in "stability." This interest was elaborated by the Court in Anderson v. Celebrezze (460 U.S. 780 1982) which cited the Court's earlier finding in Storer v. Brown (415 U.S.) of a legitimate state interest in preventing "splintered parties and unrestrained factionalism." The purpose here can again be seen to be improvement of the process of "giving expression to the will of the majority." A splintered ballot impedes the emergence of a clear majority opinion (a concern, by the way, which is diminished in the present case because if no candidate gets a majority in the June election, the top two finishers will have a run-off election in November). But while the Court acknowledged a legitimate state interest in "political stability," in both Celebrezze and Williams it rejected stability as a justification when the restrictions in question tended to create monopoly advantage and undermine accountability to The People.

Stated simply, when measures taken to "help" The People achieve better representation actually hurt, and undermine representation and accountability, they do not serve a legitimate state interest, never mind a "compelling" one. Thus the banning of all non current or recent members of the law enforcement establishment from running against current and recent members of the establishment clearly cannot be justified as promoting a compelling state interest in stability. Because this ban makes an unprecedented assault on accountability it hurts rather than helps and does not even promote a legitimate state interest.

What about the most obvious claim to a compelling state interest? Setting aside for a moment the fact that banning accountability to the people (by banning civilian oversight) is the one thing the legislature can never do, what are the merits of law enforcement background as a qualification for the office of Sheriff? I can make a better argument that it is actually perverse. Members of law enforcement get an extremely distorted picture of crime because the relation between members of law enforcement and criminals is the opposite of the relation between civilians and criminals. This is a simple consequence of what criminals do: they hunt civilians and avoid police. Consequently, it is the citizens who are the ones who are actually there when crime occurs. Law enforcement shows up later (twenty minutes later in a good department) and tries to sort out what happened. If anyone is to stop the crime, it will have to be the ordinary law abiding citizens who are present. Because this is the reality for civilians, many law abiding citizens want to be allowed to provide for their own defense.

In contrast, members of law enforcement know what it is like to be the hunters, but not the hunted. Coming in to sort out the aftermath of crime, they imagine it would be a nightmare to have to distinguish armed law abiding citizens from armed criminals. To make their job easier, they want to disarm the citizens, so that they can know that any armed person they come across is a criminal. As is often the case, though, taking the easy way means doing a worse job. Disarming the law abiding citizens also makes the criminals' "job" easier, which increases crime, which is a law enforcement failure. The mentality of law enforcement mentality is understandable, but not excusable. Our police are putting what they have to fear from law abiding citizens (nothing) over what law abiding citizens have to fear from criminals (everything). This makes a travesty of the commitment "to serve and protect." When it is the law enforcement establishment that is getting these fundamental things backwards, it is difficult to make the case that theirs is the relevant experience. The state's interest in law enforcement background is actually very questionable.

Most importantly, whatever weight ought to be given to law enforcement background as a qualification for the office of Sheriff will obviously be taken into account by the voters in any case. All the other candidates will be touting their high ranking within the law enforcement establishment. I (the plaintiff) will list that I am a carpenter and a graduate student. That is a tremendous deficit to overcome. If the voters do not learn about my platform and approve of it I won't have a prayer. The voters do not need any paternalistic help from the legislature to not vote for a person with no law enforcement background who has not convinced them with his platform that he should be voted for. Since the voters naturally account law enforcement background, it is entirely supurflous to restrict candidates to people with law enforcement background. Since it is supurflous it cannot come close to being compelling. On the other hand, if I can convince the voters with my platform, then the state's interest in accurate representation calls for me not to be excluded. If I am excluded when I would be chosen then total harm is done to the First Amendment rights of myself and everyone who would vote for me.

If the legislature wants to insist that a person's law enforcement background or lack thereof be stated explicitly on the ballot, I have no objection, since that does no harm. But the great harms done by limiting candidates to current and recent members of an arm of government itself cannot be justified in the name of forcing the voters to account what they will obviously account of their own free will.

As for the qualifications for Sheriff to be found amongst the non-law-enforcement civilian population, I (the plaintiff) am an interesting example. As an economist, working on my Ph.D. in economics at Stanford, I have been figuring out how to join economics (the theory of means) with moral theory (the theory of ends) to achieve a complete analysis of value, capable of systematically uncovering those efficiencies that are available to public policy. One of the biggest challenges of public policy is to resolve how best to serve the competing objectives of crime control and the protection of liberty. In this area, I have made astounding discoveries. For instance, by protecting liberty directly rather than indirectly (by articulating the full scope of protected liberty instead of by limiting the methods of crime control) we could relax many of the most burdensome restrictions on crime control while at the same time achieving better protection of liberty. (The key is the theory of ends. We have to know what it is what are trying to protect. We have to be able to articulate the full ideal of liberty. Then we can protect it directly, which enables huge efficiencies -- GNP sized in present discounted value.)

Similar size efficiencies are available by making minor reforms to our criminal justice system. Consider: if vestigial doubt about guilt is so crucial that we are willing to compromise our entire system of justice to defend against it, it is obvious that we should be distinguishing between cases where vestigial doubt is and is not present! All we need to do is add a certainty option to the verdict of guilt and astounding efficiencies become available. The system will become far more hazardous to the guilty while posing much less risk to the innocent. (I'll attach my article on it as exhibit D in case you want to see how these efficiencies can be reaped.) For fifteen years I have been analyzing how to fight crime. I understand this subject at a level no one else has ever come close to. Once I get my way with the law and with the state and federal constitutions I will empower law enforcement and decimate crime, but not by disempowering the people or infringing liberty.

In the meantime, I've got a whole list of things I want to do as Sheriff. The most important thing is gun rights. I understand analytically how liberty and crime control turn out not to be in competition but actually to be complementary. All the presumed conflicts disappear when analyzed correctly (as exampled above). Many of my fellow citizen instinctively understand this on the subject of gun rights. Yet the gun rights secured by the founders of this nation are under terrible attack today. Thus it is of first importance to win this most obvious battle. But that is just the beginning of what I want to accomplish. I want to stop the conflicts between law enforcement and The People. Like the fact that officers spend most of their time giving traffic tickets because that is how they can raise money for the local government's that their departments are a part of. As an economist, this kind of stupidity jumps right out at me. I will use the restitution requirement of the California State Constitution (Article I, section 28, part b) to demand restitution to the taxpayers for law enforcement costs from every person convicted in the County. No more letting the tail wag the dog. I will pursue proper law enforcement priorities and use the law to get money for it.

And what in the world is going on with this business of leaving it up to victims even of serious assaults to decide whether they want to press charges? Crimes are crimes against society. Victims have a Fifth Amendment right not to testify against themselves (an indirect protection of liberty, by the way, that could be eliminated if we would protect liberty directly) but they have no right not to testify against others. I would need cooperation from the District Attorney to shift tactics on this front, but the Sheriff, as the evidence gatherer, has the main job to do here and I would push hard for a move in this direction.

Now, if I can through some miracle rally The People to understand the magnitude of the efficiencies I can offer to them, and get them to support me, in spite of their own tendency to discount me because of my lack of law enforcement background -- if I can get them to understand that I am right, and through this achievement become their choice for office -- that direct voice of the people trumps their indirect voice through the legislature. Whatever weight ought to be given to my lack of law enforcement background The People will give. They are not idiots, and the legislature has no right to presume on their incompetence. To do so is to scorn representation of the will of The People, not facilitate it.

The state's interest in this kind of paternalism is utterly dubious, yet even clearly legitimate state interests cannot justify giving a monopoly to only one of the interests and viewpoints that seeks representation (Williams, Celebrezze), never mind justify giving current and recent members of an arm of government itself a monopoly (an unprecedented betrayal), never mind when there is ready recourse to the competence of The People, never mind when the very grounds on which a large fraction of The People want a change of leadership is because the current Sheriffs are already using their discretionary power to pursue an inappropriate and perhaps unconstitutional monopoly of power (heaping monopoly on top of monopoly). The grievous injuries to equal protection of First Amendment rights that are done in this case cannot begin to be offset by the weak rationales in favor of Government code §24004.3, which are at best devoid of constitutional values. Once strict scrutiny is applied, the "necessary to a compelling state interest" test that it imposes rightly obliterates this attempt of the Legislature to give absolute privilege to arm of government itself in the election process.

Placing government above accountability is the one thing that absolutely must never be allowed in our system of imperfect representation. Our representatives can try to make representation more perfect, but not less, and when their attacks on accountability pile such injuries as in the present case, The People (through this one imperfect representative) beg justice for mercy.


Wherefore, the plaintiff prays judgement as follows:

1. That Government Code §24004.3 of the State of California be invalidated and a Writ of Mandate issued to the defendants requiring them to allow the plaintiff to proceed with the nomination process and afford him sufficient time to complete the requirements for nomination, including the gathering of signatures, and requiring the defendants, upon recipt of the completed nomination materials, to place plaintiff on the ballot for Sheriff of Santa Clara County.

2. That because the purpose of the filing fee is to raise a hurdle that keeps the ballot from being cluttered by unserious candidates (Lubin v. Panish), and because plaintiff is demonstrating his seriousness by spending substantial resources to overcome this ballot access hurdle, he pray that he be granted relief from the filing fee in a degree equivalent to the resources he has expended in pursuing this suit.

The filing fee for the office of Sheriff is $1,315.60. Plaintiff has incurred costs of $190 for filing fees, plus $60 to have a process server file his suit in Sacramento and serve the subpoena, plus another hundred and fifty for copying and Fed Ex'ing, plus another hundred to make two trips up to Sacramento himself for his day in court, plus the lost wages for the 7 full days now he has spent researching the law and writing this brief, plus the lost wages from coming up to Sacramento for his 2 days in court. Plaintiff works as a carpenter to put himself through graduate school, earning the princely sum of $30/hr. Thus his lost wages for nine days work comes to $2160, which together with the other costs comes to over $2660, which is more twice the filing fee. If the court could grant plaintiff relief from the filing fee it would be much appreciated.

If this relief is granted, plaintiff ask that it be included in the Writ of Mandate that the defendants are to waive the filing fee for plaintiff's nomination.

3. For such other and further relief as the court may deem proper.



I am the plaintiff in the above-entitled action; I have read the forgoing complaint/petition and know the contents thereof; the same is true of my own knowledge.



Dated:__________, 19___ ____________________

Alexander Rawls, Plaintiff



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Date Last Modified: 8/27/99
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