Vol. 19 No. 2- Ninth Circuit Approves County Jail Strip Search Policy

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer

February 20, 2004

On February 18, 2004, Ventura County Superior Court Judge Henry J. Walsh ruled that a lawsuit by the Sheriff and District Attorney, against the Board of Supervisors, will proceed to trial and rejected the County’s efforts to have the suit dismissed.

As you will recall, Sheriff Bob Brooks and D.A. Greg Totten filed suit after the Board declared that Ordinance No. 4088, which guaranteed a minimum amount of general fund money for the Sheriff and D.A., was unconstitutional.  The ordinance was adopted in 1995 by the Board, after an initiative qualified for the ballot, with more than 57,000 signatures. In addition to setting a base year for the general fund money, the ordinance built in increases for inflation and, further, specified four law enforcement agencies as exclusive recipients of Proposition 172 funds.  Due to financial constraints, in 2001, the Board voted to limit the inflationary costs awarded to each agency and that precipitated the suit by the Sheriff and D.A.  That action, according to the lawsuit, cost the Sheriff and D.A. over $50 million dollars over the past three years.

Sheriff Brooks asked the California State Sheriff’s Association to provide legal support and assistance through the submission of an amicus curiae brief to the Superior Court.  Although it is unusual to submit an amicus brief at that level (as opposed to the appellate court), the CSSA Board authorized Jones & Mayer to proceed. The issues were two fold:  (1) is the ordinance constitutional or, as the County alleges, defective because it interferes with the Board’s authority to set a budget; and (2) if the ordinance is constitutional, can the Board alter one of its provisions without taking it to the people for a vote?

The amicus brief we filed argued, among other things, that the public can “trump” the Board through the initiative process and, as in this case, allocate a specific amount of general fund money to a particular agency.  We, obviously, were pleased that our brief was accepted and considered by the court in its decision. Although the court indicated that its decision was based on “procedural grounds,” and not on the merits, it is significant because the court refused to declare the ordinance unconstitutional based on the law. The matter will now proceed to trial unless the County withdraws its opposition – which is highly unlikely.

The importance of the ultimate decision cannot be understated and we will, obviously, follow it’s path and keep you all informed.  If, and when, the matter reaches the Court of Appeal (which is very likely) we will look, once again, for authorization to prepare and submit another amicus brief in support of the Sheriff and D.A. As always, if you have any questions regarding this matter, feel free to communicate with Martin Mayer at 714 – 446-1400 or by e-mail.