Filed 3/18/19
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                            DIVISION SIX


BRUCE BOYER,                                2d Crim. No. B289919
                                    (Super. Ct. No. 56-2018-00509733-CU-
     Plaintiff and Appellant,                     WM-VTA)
                                              (Ventura County)
v.

VENTURA COUNTY et al.,

     Respondents.



      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.)



                                  2
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
                                                        1
to run as county sheriff as set forth in section 24004.3. A



        Elections Code section 13.5 provides in pertinent part:
      1


“(a)(1) Notwithstanding subdivision (a) of Section 13, no person
shall be considered a legally qualified candidate for any of the


                                 3
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


                                  4
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


                                 5
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
                                                                  2
elected assessor, and an elected governing body in each county.”
(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



        Although this Legislative power dates back over 150
      2


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 . . . .”


                                 6
[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



                                 7
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



                                 8
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) [five-
year 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



                                 9
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



                                10
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.



                                 11
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.)
                            Disposition
       The judgment (order denying mandamus petition) is
affirmed. Costs on appeal are awarded to respondents.
       CERTIFIED FOR PUBLICATION.




                                                YEGAN, J.

We concur:


             GILBERT, P. J.


             PERREN, J.




                                12
                     Vincent O'Neill, Judge

               Superior Court County of Ventura

                ______________________________

     Joel S. Farkas, for Plaintiff and Appellant.

      Leroy Smith, County Counsel, Roberto R. Orellana,
Assistant County Counsel for Defendants and Respondents.
