Judge’s Ruling Clears Way for Roache to Run : Politics: A Superior Court judge said the Sheriff’s Department captain cannot be prevented by department policies from opposing his boss in the next election.

Sheriff’s Capt. Jim Roache cannot be prevented from running against San Diego County Sheriff John Duffy by policies in the Sheriff’s Department, a Superior Court judge ruled Monday, adding that the policies impose a “chilling effect” on potential political candidates and the First Amendment.

Judge Philip D. Sharp also said that a second Sheriff’s Department policy prohibiting employees from publicly criticizing Duffy or his department is unconstitutional because it essentially prevents Roache from conducting an effective campaign to unseat Duffy in next year’s election.

“This has such a chilling effect that he can’t even be a candidate,” the judge said.

Roache, who did not attend the Monday afternoon court hearing, said the ruling all but clears the way for him to join three other prospective candidates in filing next year against Duffy, who, after 20 years as sheriff, is seeking an unprecedented sixth term.

Roache said the decision now makes it “highly probable” that he will run for sheriff. He said he will probably make a formal announcement within a week.

“I was not totally surprised by the decision,” Roache said in a telephone interview, explaining that his lawyer and his own research had convinced him that Duffy’s policy is unconstitutional.

“It’s time for a change,” Roache said.

Duffy, who also did not attend the hearing, could not be reached for comment.

But his attorney, Dan Wallace, chief deputy in the county counsel’s office, said that Duffy has all along indicated that he planned to waive the policies to allow Roache to campaign for sheriff and to publicly criticize the Sheriff’s Department. But Wallace said that the matter is “very complex” and that Duffy simply had not had enough time to reverse the provisions.

And he said that Roache, by bringing a lawsuit to force Duffy’s hand, was actually engaging in political grandstanding.

“The purpose of this hearing was to drum up publicity for Capt. Roache,” Wallace said after the judge issued his rulings. “That’s blatantly clear.”

He also downplayed the judge’s choice of terms in saying the provisions imposed a chilling effect on Roache’s constitutional rights, and he said he does not consider the judge’s orders a rebuke of Duffy’s management style.

“This is language of art,” Wallace said. ‘ “Chilling effect’ is a common term in legal language. It’s not a rebuke at all.”

But Everett Bobbitt, a private attorney representing Roache, said his client proceeded with the court case because he worried that Duffy might not waive the policy until the filing deadline next spring. If that happened, Bobbitt said, Duffy would be so far ahead of Roache in raising campaign funds that a Roache candidacy would be virtually fruitless.

“Roache did everything under his power to get Duffy to change the policies,” Bobbitt said after the hearing. “We were forced to court by Duffy.”

Bobbitt added that it would have been foolhardy for Roache, with almost 20 years on the Sheriff’s Department, to ignore the policies and campaign on Duffy’s promise that they would be overturned.

“Would you risk it on Sheriff Duffy’s promise to change the rules?” Bobbitt asked. “Would you trust Sheriff Duffy?”

He denied Wallace’s contention that the lawsuit was a publicity ploy for Roache and said the judge was correct in describing the policies as having a chilling effect on First Amendment rights.

“It seems so clear in this country that you can criticize public officials,” Bobbitt said. “And he (Wallace) as a lawyer should recognize that himself. I would not have gone forward and represented someone who is violating the Constitution.”

At issue before the court were two separate departmental policies.

The first was a provision that prohibits staff members from running against the incumbent sheriff, which the judge said “constituted a chilling effect, even though the sheriff has indicated an intention to revoke the archaic provision.

“It is clearly unconstitutional. Mr. Roache should be entitled to relief under the law.”

The second issue dealt with a separate policy that prohibits staff members like Roache, who supervises the Lemon Grove station, from publicly criticizing Duffy or his Sheriff’s Department. Roache maintained that this policy violated his right to free speech, and effectively gutted any serious campaign he might bring against the incumbent sheriff.

“It could be construed that this policy prevents legitimate public debate for Mr. Roache concerning his views of the Sheriff’s Department,” the judge said.

The other likely candidates are former San Diego Police Chief Ray Hoobler, Escondido Police Chief Vince Jimno, and San Diego Deputy Police Chief Manuel Guaderrama.