Supervisors Countersue Sheriff, D.A.

Times Staff Writers

Attorneys for Ventura County supervisors went to court Monday to press their case for invalidating an 8-year-old public safety funding ordinance, arguing that the local law is unconstitutional because it ties the hands of elected leaders at budget time.

The county's action came in response to a lawsuit filed in July by the sheriff and district attorney alleging that the Board of Supervisors has under-funded their departments in violation of the ordinance, adopted in 1995 by a 3-2 vote of the board.

Supervisors disagreed. And now they have filed a countersuit challenging the legality of the funding law, saying it interfered with their authority to set annual spending plans.

The two sides squared off Monday in a hearing before Ventura County Superior Court Judge Henry J. Walsh to decide whether the countersuit can proceed.

"The ordinance is unconstitutional for multiple reasons," Steven L. Mayer, an attorney retained by the county, said after the hearing. "Under state law, only the Board of Supervisors can adopt county budgets and determine budgetary priorities."

But attorneys for Sheriff Bob Brooks and Dist. Atty. Greg Totten argued Monday that the Board of Supervisors did not have legal standing to question the validity of the ordinance and that, in fact, supervisors had a duty to defend the law from legal challenges, particularly because they adopted it.

Supervisors had agreed to enact the ordinance after law enforcement leaders and a citizen's group gathered about 50,000 signatures to place an initiative on the ballot that would steer all proceeds from a half-cent sales tax to the sheriff, district attorney, public defender and probation department. As much as $50 million is funneled to those departments annually.

Attorney Anthony H. Trembley, who represents the sheriff and district attorney, said the Board of Supervisors lost the ability to challenge the ordinance when it decided to put the law on the books. And he said the county's position is even weaker because it waited eight years to bring the legal challenge.

Moreover, Trembley said that the only way to change the ordinance now was to put it to a vote of the people.

"The board's action here is an insult to Ventura County voters," Trembley said outside the courtroom.

Walsh could rule on the issue as early as this week, and a provocative legal question awaits should he allow the countersuit to go forward: Can the county challenge the constitutionality of an ordinance it adopted, or has it lost legal standing?

USC law professor Erwin Chemerinsky said it was a question without an easy answer because government entities rarely challenge their own laws.

"I've never seen that issue come up," Chemerinsky said.

But he added that the county could be precluded from fighting the ordinance on constitutional grounds because elected leaders did not challenge the law when it was first enacted.

In other words, he said, there is a strong argument that current board members may be bound by the actions of their predecessors.

"There is a principle that says we have one government, and by that notion the county took a position eight years ago and they can't now challenge what they have done," Chemerinsky said. He hastened to add, however, "I think this is a question of first impression. I can't think of any precedent to look to in resolving this."

Attorneys for the county said if Walsh allowed the countersuit to go forward, they expected to be in court early next year arguing the constitutionality question. Two Ventura County grand juries already have looked into the issue and concluded that the law usurps the board's budgetary authority.

The county counsel's office also has weighed in, concluding that future boards are probably not bound by the law's directives and that a majority probably could amend or even repeal the funding law.

"The county counsel's office has always believed that this ordinance is unconstitutional," said Assistant County Counsel Matthew A. Smith, noting that the county's challenge came only after it had been sued.

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