Penrod

Today the majority holds that certain challenged sections of the San Bernardino County Code (County Code) have not been shown on their face to be in conflict with the California Constitution. I agree with their conclusion on the merits. However, I write separately to further examine the issues considered by the majority and also to address additional points raised by the appellant that were omitted from the majority analysis. As indicated, this case presents an issue as to the constitutionality of certain County Code sections. It reaches this court as an appeal from a judgment entered after the County of San Bernardino’s (County) motion for *194 summary judgment was sustained. Penrod also appeals from the trial court’s order dissolving an earlier granted preliminary injunction. Both the summary judgment for County and the dissolution of the injunction flow from the determination that the challenged County Code sections were not shown to be facially unconstitutional. Thus if summary judgment was proper, as this court concludes it was, the dissolution order was also proper and must be affirmed. The purpose of summary judgment “is to provide courts with a mechanism to cut through the…

1. Introduction

Plaintiff Gary Penrod, the Sheriff of the County of San Bernardino, mounts a facial challenge against Ordinance No. 3875, giving the county board of supervisors the power to remove the sheriff by a four-fifths vote. Penrod’s appeal does not involve any actual effort to invoke the removal power. We hold the ordinance is facially constitutional and affirm the summary judgment in favor of the county.

2. Factual and Procedural Background

In July 2002, the board of supervisors adopted Ordinance No. 3863, involving reprimand and removal of county officers, including the sheriff. Ordinance No. 3863 provides removal for cause may be accomplished by a four-fifths vote of the board: “Any County officer other than supervisor may be removed from office in the manner provided by law; also any such officer may be removed by a four-fifths vote of the Board of Supervisors, for cause, after first serving upon such officer a written statement of alleged grounds for such removal, and giving him a reasonable opportunity to be heard in the way of explanation or defense.”

Causes for removal include: “(1) Flagrant or repeated neglect of duties. [¶] (2) Misappropriation of…

Steve Cooley, District Attorney, Brent Riggs and William Woods, Deputy District Attorneys, for the County of Los Angeles on behalf of Plaintiff and Appellant.

Plaintiff Gary Penrod, the Sheriff of the County of San Bernardino, mounts a facial challenge against Ordinance No. 3875, giving the county board of supervisors the power to remove the sheriff by a four-fifths vote. Penrod's appeal does not involve any actual effort to invoke the removal power. We hold the ordinance is facially constitutional and affirm the summary judgment in favor of the county.

In July 2002, the board of supervisors adopted Ordinance No. 3863, involving reprimand and removal of county officers, including the sheriff. Ordinance No. 3863 provides removal for cause may be accomplished by a four-fifths vote of the board: "Any County officer other than supervisor may be removed from office in the manner provided by law; also any such officer may be removed by a four-fifths vote of the Board of Supervisors, for cause, after first serving upon such officer a written statement of alleged grounds for such removal, and giving him a reasonable opportunity to be heard in the way of explanation or…