DiRaffael v. Cal. Army Nat. Guard ( 2019 )

Filed 5/23/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ROBERT DIRAFFAEL, B284859
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS144419)
v.
CALIFORNIA ARMY NATIONAL
GUARD, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles, Mary H. Strobel, Judge. Affirmed.
Robert DiRaffael, in pro. per., for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Chris A. Knudsen,
Assistant Attorney General, Kenneth C. Jones and Eric Fox,
Deputy Attorneys General, for Defendants and Respondents.
_________________________
1
Plaintiff and appellant Robert DiRaffael, appearing
in propria persona, appeals from the denial of his petition for a
writ of mandate directing the California Army National Guard
(CAARNG) to vacate an order separating appellant, a
commissioned officer, from CAARNG. Defendants and
respondents are CAARNG and four individuals named in
appellant’s petition: David S. Baldwin, California’s Adjutant
General; Lawrence A. Haskins, commander of CAARNG; and
John D. Ford and Dwight D. Stirling, two officers in CAARNG
who purportedly reviewed and supervised the issuance of the
separation order.
CAARNG ordered appellant separated pursuant to federal
regulations governing selective retention of National Guard
officers after 20 years of service. Appellant argued in his writ
petition that the United States Constitution reserved to the
states the right to appoint and terminate the appointments of
state National Guard officers, and therefore CAARNG could not
rely on federal regulations to separate him. The trial court found
that state law incorporated the applicable federal regulations via
provisions of the Military and Veterans Code, and thus CAARNG
properly could invoke them to separate appellant.
Appellant argues that the trial court erred because
(1) the United States Constitution prohibits the Legislature
from incorporating the federal regulatory provisions under which
CAARNG separated appellant and (2) even if the Legislature
could incorporate those provisions, it has not done so. We reject
both propositions. We further hold that appellant’s claims of
purported procedural and evidentiary errors by the trial court
lack merit. Accordingly, we affirm the judgment.
2
FACTUAL BACKGROUND
Appellant served as a lieutenant in CAARNG. In
September 2012 he received a letter sent on behalf of the Chief of
the federal National Guard Bureau notifying him that, having
completed 20 years of required service,1 he was eligible for
retired pay upon application at age 60.
On April 30, 2013, Respondent Haskins issued an order
appointing an “Officer Selective Retention Board” pursuant to
National Guard Regulation (NGR) No. 635–102, a federal
regulation. The order stated that “[t]he purpose of the Board is
to recommend qualified officers, who have 20 years of qualifying
service for retired pay at age 60, for continued unit participation
in the California Army National Guard.”
In July 2013, appellant was served with a memorandum
signed by Haskins “for the Adjutant General.” (Capitalization
omitted.) The memorandum stated that appellant was
“considered for retention in accordance with NGR 635–102 and
unfortunately, you were not selected for retention in the
California Army National Guard. NGR 635–102 provides that an
officer who is considered for retention and is not selected will be
separated from the Army National Guard. Accordingly, you will
be separated with an effective date of 30 September 2013.” The
memorandum stated it was appellant’s “responsibility to elect
membership in either the Retired Reserve or the Individual
Ready Reserve (IRR) of the United States Army Reserve (USAR)
upon discharge from the California Army National Guard.”
1Those 20 years included four years served in the
Alaska Army National Guard.
3
Appellant received an “Acknowledgement of Receipt”
(boldface omitted) that requested he select one of the two reserve
options listed in Haskins’s memorandum. Rather than selecting
either option, however, appellant wrote “[t]his action was not
taken in accordance with NGR 635–102 or relevant law,” and
“I opt to stay a member of the CAARNG.”
CAARNG served appellant with an order, dated
September 10, 2013 stating, “You are separated from the
Army National Guard on [September 30, 2013] and assigned as
indicated on date immediately following.” The order further
stated, “Upon termination of federal recognition officer becomes a
member of USAR under provisions of Title 10 U.S. Code 12213.”
The order listed a “[r]eserve obligation” dated February 28, 2014.
The order stated that it was “by order of the Governor” (some
capitalization omitted), and bore the stamp of the Military
Department. The order cited as authority “Para 5a(8) NGR 635–
100.” NGR No. 635–100 is a federal regulation stating that
“[u]nless contrary to State law and regulations, the appointment
of an Army National Guard officer should be terminated” for
specified reasons (NGR No. 635–100, subd. (5)(a)), including
“[u]pon [the officer] becoming a member of the Army Reserve”
(id., subd. (5)(a)(8)).
PROCEDURAL HISTORY
Appellant filed a petition for a writ of mandate under
Code of Civil Procedure sections 1085 and 1094.5, naming
respondents. Appellant contended that separating him from
CAARNG “based on the recommendation of a Federal Selective
Retention Board . . . contravenes the applicable laws and policies
of the State of California.” Appellant claimed that “the sole
process by which a [California National Guard] officer may be
4
involuntarily discharged through administrative separation for
non-medical reasons is through a board convened pursuant to
[Military and Veterans] Code § 234.” Appellant invoked article I,
section 8, clause 16 of the United States Constitution, which
“reserv[es] to the States respectively, the Appointment of the
Officers” of the state militia. Appellant argued that, even
accepting that the federal board had removed his eligibility for
federal service, he remained eligible for state service under
California law. Appellant prayed for a writ of mandate ordering
respondents to vacate the memorandum signed by Haskins
notifying him of his separation.
The petition specified that appellant “d[id] not request [the
trial court] to subject the [federal selective retention board] to
direct review,” and described the board as “a Federal entity
composed of Federal officers who act under Federal authority
exclusively.” The petition stated that appellant was in the
process of exhausting his federal administrative remedies in
anticipation of filing a separate action in federal court to
challenge “withdrawal of my Federal Recognition by the National
Guard Bureau . . . of the United States Department of Defense.”
Respondent Baldwin filed a notice of removal to federal
district court. After more than a year with no action by
appellant, the federal court granted an unopposed motion to
dismiss the case for lack of prosecution. Appellant responded
with a motion to alter or amend judgment that, among other
things, challenged the federal court’s jurisdiction. The federal
court concluded that appellant’s petition indicated “an intent to
sue solely as to the state law question of whether separation from
CAARNG was procedurally proper, and not to sue as to Major
General Baldwin’s acts under the authority of federal law.” On
5
this basis the federal court found it lacked jurisdiction, vacated
its dismissal order, and remanded the case to the trial court.
After remand and briefing, the trial court conducted a
hearing on the petition. The trial court issued a tentative
decision and ordered supplemental briefing on several issues,
including whether appellant could serve in CAARNG absent
federal recognition, the applicability of the governor’s authority
to transfer and reassign California National Guard members
under Military and Veterans Code section 239, and whether the
Feres2 doctrine barred appellant’s petition.
After the parties submitted their supplemental briefs, the
trial court held a second hearing at which it ordered additional
briefing on due process, specifically whether appellant received
adequate notice of the selection retention proceeding.
After receiving the additional briefing, the trial court
issued a written decision denying the writ. As an initial matter,
the trial court found that a writ of administrative mandate
pursuant to Code of Civil Procedure section 1094.5 was
inapplicable because the selective retention process under
NGR No. 635–102 did not provide for an evidentiary hearing.
The trial court therefore assessed whether the petition stated
grounds for a writ of mandate under Code of Civil Procedure
section 1085.
The trial court found that “the power to appoint and
terminate a state National Guard officer is held by the state,”
and acknowledged that appellant had been separated under the
authority of federal regulations. The trial court found, however,
that provisions of the Military and Veterans Code, including
2 Feres v. United States (1950) 340 U.S. 135 (Feres).
6
sections 100 and 101, “specifically incorporate[ ] federal law and
regulations” “ ‘so far as the same are not inconsistent with the
rights reserved to this State and guaranteed under the
Constitution of this State.’ ” (Quoting Mil. & Vet. Code, § 101
boldface and italics omitted.) The trial court determined the
relevant inquiry was whether the applicable federal regulations,
NGR Nos. 635–100 and 635–102, as applied to appellant, were
inconsistent with the rights reserved to California and
guaranteed under its Constitution, in which case they would not
be incorporated into state law and could not serve as a basis to
separate appellant from CAARNG.
The trial court then compared various provisions of the
Military and Veterans Code to the federal regulations as applied
to appellant and found no inconsistency. The trial court further
found appellant’s cited authorities inapposite. The trial court
therefore deemed the provisions of NGR Nos. 635–100 and
635–102 as applied to appellant incorporated into state law and
an adequate basis to order appellant’s separation from CAARNG.
On the due process question, the trial court concluded that,
while appellant was entitled to notice of the federal selective
retention proceeding, there was no requirement that CAARNG
further notify him before separating him from the state National
Guard as a result of that federal proceeding. Thus, CAARNG did
not violate appellant’s right to due process.3
Finally, the trial court ruled that the Feres doctrine did not
bar its review, because appellant was challenging the procedure
under which he was separated, not the substantive decision to
3 On appeal, plaintiff does not challenge the trial court’s
conclusion regarding due process.
7
separate him, and therefore the writ petition “would not
necessarily implicate military reasoning or judgment.”
Appellant moved for reconsideration. The trial court
denied the motion, concluding appellant had failed to present
new law or evidence, and to the extent any of his arguments were
new, he had not shown reasonable diligence excusing his failure
to raise them earlier. The trial court also declined to reconsider
its order sua sponte.
The trial court entered judgment denying the petition.
Appellant timely appealed from the judgment and the order
denying his motion for reconsideration.4
STANDARD OF REVIEW
A writ of mandate under Code of Civil Procedure
section 1085 “ ‘may be issued by any court . . . to compel the
performance of an act which the law specially enjoins, as a
duty resulting from an office, trust, or station . . . .’ ”
(Kavanaugh v. West Sonoma County Union High School Dist.
(2003) 29 Cal. 4th 911, 916 (Kavanaugh).) To prevail, petitioner
must show CAARNG “has a clear, present and ministerial duty”
to vacate its order of separation and that petitioner “has a clear,
present and beneficial right to performance of that duty entitling
[him] to a writ of mandate.” (Ibid.) We assume for purposes
of this appeal that a writ under Code of Civil Procedure
section 1085 is the proper mechanism for the relief appellant
4 In his appellate briefing, plaintiff does not challenge
the trial court’s conclusion that he failed to show a basis
for reconsideration. We deem that issue abandoned.
(Lafferty v. Wells Fargo Bank, N.A. (2018) 25 Cal.App.5th 398,
428.)
8
seeks; appellant does not challenge the trial court’s conclusion
that a writ under Code of Civil Procedure section 1094.5 is
inapplicable.
In reviewing the trial court’s decision to deny the writ, we
defer to any factual determinations if supported by substantial
evidence and review legal determinations de novo. (Kavanaugh,
supra, 29 Cal.4th at p. 916.)
OVERVIEW OF THE NATIONAL GUARD AND
APPLICABLE REGULATIONS
A. Organization of the National Guard
“The National Guard is an unusual military force because
it serves both as the militias for the 50 states, the District of
Columbia, Puerto Rico, Guam, and the American Virgin Islands,
and as the reserve force for the United States Army and Air
Force. ‘The [National] Guard occupies a distinct role in the
federal structure that does not fit neatly within the scope of
either state or national concerns. In each state the National
Guard is a state agency, under state authority and control. At
the same time, federal law accounts, to a significant extent, for
the composition and function of the Guard.’ ” (Stirling v. Brown
(2018) 18 Cal.App.5th 1144, 1151 (Stirling), alteration in
original.)
“The Governor and his or her appointee, the Adjutant
General, command the National Guard in each state.” (Stirling,
supra, 18 Cal.App.5th at p. 1151.) In California, the Adjutant
General is the head of the Military Department, which includes,
among other things, the California National Guard and the State
Military Reserve. (Mil. & Vet. Code, §§ 51, 52.) The California
National Guard encompasses both the California Army National
9
Guard and the California Air National Guard. (See
https://calguard.ca.gov/join/, as of May 13, 2019.)
“[A]s presently constituted, the National Guard consists of
‘ “two overlapping, but legally distinct, organizations . . .” ’—the
federal, or United States National Guard, and the separate
National Guards of the various individual states.” (Holmes v.
California Nat. Guard (2001) 90 Cal. App. 4th 297, 310 (Holmes).)
“All persons enlisting in a state National Guard/militia
simultaneously enlist in the United States National Guard.”
(Stirling, supra, 18 Cal.App.5th at p. 1151.) “In their capacity as
members of the National Guard of the United States, individual
members of the National Guard are part of the enlisted Reserve
Corps of the Armed Forces of the United States. However, unless
and until ordered to active duty in the Army, such individuals
retain their status as members of separate state National Guard
units.” (Holmes, supra, 90 Cal.App.4th at p. 310.)
When not serving in federal active duty, state National
Guard members may serve in one of two statuses. They may
serve in a “hybrid” status in which they “operate[ ] under state
active duty and under state control but in the service of the
federal government.” (Stirling, supra, 18 Cal.App.5th at p. 1153.)
In this capacity, “ ‘National Guard members are under the
command and control of the state and thus in a state status, but
are paid with federal funds.’ ” (Ibid., quoting NGR No. 500–5,
§ 10–3(a).) Alternatively, National Guard members may serve
in pure state active duty status, “ ‘under state control for
state purposes and at state expense as provided in the
state’s constitution and statutes.’ ” (Stirling, at p. 1152,
quoting NGR No. 500–5, § 10–2.)
10
To serve either in federal active duty or under command
and control of the state but paid with federal funds, a National
Guard member must receive “ ‘federal recognition,’ ” which is “an
‘acknowledgement’ by the federal government” that the member
“meets all the requirements for federal service and therefore
qualifies and is eligible for a position in the United States
National Guard.” (Holmes, supra, 90 Cal.App.4th at p. 312.) “An
officer or member of a state National Guard who has lost federal
recognition can no longer be called into active federal service.
Notwithstanding loss of federal recognition, however, such an
individual may remain on state active duty and retain an officer
position in state National Guard and United States reserve
groups not requiring federal recognition and not subject to being
called into federal service.” (Ibid.) Appellant concedes that a
National Guard member who loses federal recognition is not
eligible for federal pay.
The parties to this appeal disagree whether and in what
capacity an officer may serve in CAARNG absent federal
recognition. Appellant contends federal recognition is not
required for a state appointment. Respondents, in contrast,
contend that “[f]ederal authority governs the determination of
who may be employed by CAARNG,” and that, irrespective of
state law, federal law mandates that an officer cannot serve in
CAARNG without federal recognition. Because we conclude post
that federal regulations as incorporated into California law
justified appellant’s separation, we need not and do not decide
whether federal law provides an independent basis for
separation.
11
B. Applicable federal regulations
1. NGR No. 635–102
The parties do not dispute that the selective retention
process applied to appellant was governed by the version of
NGR No. 635–102 effective July 1, 1988. All references in this
opinion to NGR No. 635–102 are to the 1988 version.
NGR No. 635–102 “prescribes policies and procedures for
establishing and conducting selection boards used in the [Army
National Guard] program for selective retention of officers and
warrant officers beyond 20 years of qualifying service for retired
pay.” (NGR No. 635–102, subd. (1).) Among the stated goals for
the selective retention program is “[e]nsuring that only the most
capable officers are retained beyond 20 years of qualifying service
for assignment to the comparatively few higher level command
and staff positions.” (Id., subd. (3)(a).) The regulation directs
that “[s]election boards will be convened in each State annually.”
(Id., subd. (4).) Officers being considered for retention may not
appear before the selection board in person, but may submit a
letter to the board “inviting attention to any matter of record
concerning themselves.” (Id., subd. (8)(d)(1), (2).)
After a selection board convenes and issues a report, the
Adjutant General may “(a) [a]pprove the report in its entirety[;]
[¶] (b) [r]emove an officer’s name from the nonselect list
and place it on the select list for retention for 1 or 2 years[;
or] [¶] [m]odify the select list to change an officer from a 1–year
retention to a 2–year retention.” (NGR No. 635–102,
subd. (5)(j)(1)(a) – (c).) The Adjutant General may only modify
the select list in an officer’s favor; the Adjutant General may not
modify the list to remove an officer selected for retention, or
change an officer’s retention period from two years to one year.
12
(Id., subd. (5)(j)(2).) The Adjutant General may also disapprove
the report in its entirety and direct the board to reconsider all
cases. (Id., subd. (5)(j)(3).)
The regulation states that an officer who loses federal
recognition as a result of the selective retention process
becomes a member of the Army Reserve, cross-referencing
10 United States Code section 3352. (NGR No. 635–102,
subd. (7)(a).) 10 United States Code section 3352 has since been
renumbered 10 United States Code section 12213; it states, in
relevant part, “an officer of the Army National Guard of the
United States whose Federal recognition as a member of the
Army National Guard is withdrawn becomes a member of the
Army Reserve. An officer who so becomes a member of the Army
Reserve ceases to be a member of the Army National Guard of
the United States.” (10 U.S.C. § 12213(b).)
2. NGR No. 635–100
NGR No. 635–100 is entitled “Termination of Appointment
and Withdrawal of Federal Recognition.” The parties do not
dispute that the version of the regulation applicable to appellant
is dated September 8, 1978, and all references to the regulation
in this opinion are to that version.
NGR No. 635–100 “prescribes the policies, criteria and
procedures governing the separation of commissioned officers of
the Army National Guard.” (NGR No. 635–100, subd. (1).) It
states that “[t]he termination of an officer’s appointment in the
Army National Guard is a function of the State,” whereas “[t]he
withdrawal of Federal recognition of an officer is a function of the
Chief, National Guard Bureau, acting for the Secretary of the
Army.” (Id., subd. (2)(a)–(b).)
13
Subdivision (5)(a) of NGR No. 635–100 lists the “criteria”
for “termination of state appointment.” (Capitalization, boldface,
and italics omitted.) It states, “Unless contrary to State law and
regulations, the appointment of an Army National Guard officer
should be terminated for the reasons listed below. If termination
of appointment is contrary to State law [a]nd regulations, the
Chief, National Guard Bureau, will be notified in advance and
Federal recognition will be withdrawn.” (NGR No. 635–100,
subd. (5)(a).)
NGR No. 635–100 lists 26 bases under subdivision (5)(a) for
terminating an officer’s state appointment. The order
separating appellant from state service cited NGR No. 635–100,
subdivision (5)(a)(8) as authority. That subdivision directs that
an officer’s state appointment should be terminated “[u]pon
[the officer] becoming a member of the Army Reserve.” (Id.,
subd. 5(a)(8).) Under 10 United States Code section 12213(b) and
NGR No. 635–102, subdivision (7)(a), the transfer to the Army
Reserve was automatic once appellant lost federal recognition as
a result of the selective retention process.
The trial court concluded that appellant also was separated
under NGR No. 635–100, subdivision (5)(a)(22), which states that
an officer’s state appointment should be terminated “[a]s a result
of failure of selective retention (NGR No. 635–102).” The
trial court found CAARNG implicitly invoked this provision
by referencing in the order appellant’s loss of federal recognition.
Appellant does not dispute on appeal that CAARNG
purported to separate him pursuant to NGR No. 635–100,
subdivision (5)(a)(22) in addition to subdivision (5)(a)(8).5
5 Plaintiff claims CAARNG’s stated or implicit reasons for
his separation were pretextual, and disputes that a selective
14
DISCUSSION
I. The Feres Doctrine Does Not Bar Appellant’s Writ
Petition
Respondents contend that the Feres doctrine precludes
judicial review of appellant’s separation from CAARNG. This
doctrine originally prohibited members of the armed forces from
bringing claims under the Federal Tort Claims Act (28 U.S.C.
§ 2671 et seq.) “for physical injuries that ‘arise out of or are in the
course of activity incident to service.’ ” (Estes v. Monroe (2004)
120 Cal. App. 4th 1347, 1352.) Courts have since expanded it to
bar “a wide variety of statutory and constitutional claims”
brought by servicemembers against the military. (Ibid.) Courts
have justified the doctrine “in significant part on the view that
the judiciary ought not to intrude in military affairs,” and courts
have “interpreted [the Feres rule] as necessary to avoid the
courts’ second-guessing military decisions, or impairing military
discipline.” (Stauber v. Cline (9th Cir. 1988) 837 F.2d 395, 398.)
Some federal courts have applied the Feres doctrine to bar
suits by servicemembers seeking reinstatement, the relief sought
by appellant here. (See, e.g., Speigner v. Alexander (11th Cir.
2001) 248 F.3d 1292, 1294, 1298 (Speigner); Watson v. Arkansas
Nat. Guard (8th Cir. 1989) 886 F.2d 1004, 1005 (Watson); but see
Jorden v. National Guard Bureau (3d Cir. 1986) 799 F.2d 99, 109
[Feres and progeny did not bar National Guard officer’s claim for
reinstatement].)
retention board actually convened and rejected him or that he
transferred to the Army Reserve. We address these arguments in
Part III of our Discussion section, post.
15
Those courts recognize, however, that the Feres doctrine
does not bar facial constitutional challenges to military
regulations or statutes. (See Speigner, supra, 248 F.3d at
p. 1298; Watson, supra, 886 F.2d at p. 1010.) The United States
Supreme Court has heard, for example, constitutional challenges
to military dress codes (Goldman v. Weinberger (1986) 475 U.S.
503), all-male draft registration requirements (Rostker v.
Goldberg (1981) 453 U.S. 57), and military benefits statutes that
discriminated against women (Frontiero v. Richardson (1973)
411 U.S. 677).
Similarly, the California Court of Appeal has considered a
state constitutional challenge to enforcement of the federal
“Don’t Ask, Don’t Tell” policy regarding the sexual orientation of
servicemembers. (Holmes, supra, 90 Cal. App. 4th 297.)
As the Eighth Circuit said in Watson, “There is a vast
difference between judicial review of the constitutionality of a
regulation or statute of general applicability and judicial review
of a discrete military personnel decision. In the first instance, a
legal analysis is required; one which courts are uniquely qualified
to perform. The second involves a fact-specific inquiry into an
area affecting military order and discipline and implicating all
the concerns on which Feres [and progeny] are premised.”
(Watson, supra, 886 F.2d at p. 1010.)
In the instant case, appellant has brought, in essence,
a facial constitutional challenge. He does not dispute the
particular decision not to retain him, but rather whether
NGR No. 635–100, a federal regulation, provides a constitutional
basis to separate him from the state National Guard. Resolving
that challenge does not require us to intrude into military affairs
or second-guess military decisions, but only to analyze
16
constitutional, statutory, and regulatory provisions, analysis for
which the courts are well-suited. Thus, even assuming arguendo
the Feres doctrine may bar certain suits seeking reinstatement, it
is inapplicable here.
II. Appellant Fails To Show The Trial Court Erred In
Concluding That CAARNG Properly Separated
Appellant Based On Federal Regulations
Incorporated Into State Law
The trial court concluded that subdivisions (5)(a)(8) and
(5)(a)(22) of NGR No. 635–100 had been incorporated into
California law under the Military and Veterans Code. Therefore,
the selective retention board’s decision not to retain appellant for
federal service, and his resulting transfer to the Army Reserve,
provided bases for CAARNG to separate appellant from state
military service as well.
Appellant’s challenges to this conclusion fall into two
categories. First, appellant contends that principles of
federalism, along with the United States Constitution’s express
reservation of states’ rights concerning the militia, bar a state
from incorporating federal law governing the appointment and
termination of state military officers. Second, he contends that to
construe the Military and Veterans Code to incorporate federal
regulations governing appointment and termination of state
officers is inconsistent with the statutory language and
legislative intent of that Code. Appellant’s challenges therefore
require us to address two questions: (1) Can the Legislature
incorporate the federal regulatory provisions at issue here, and
(2) has the Legislature done so? The trial court answered both in
the affirmative; we conclude appellant shows no basis for
reversal.
17
A. States may incorporate federal law regarding
appointment and termination of National
Guard officers
1. The Militia Clauses of the U.S.
Constitution
Article I, Section 8, Clauses 15 and 16 are known as the
“Militia Clauses” of the United States Constitution. (Perpich v.
Department of Defense (1990) 496 U.S. 334, 337, fn. 3 (Perpich).)
The First Militia Clause states that Congress has the power “[t]o
provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions.” (U.S. Const.,
art. 1, § 8, cl. 15.) The Second Militia Clause states that
Congress has the power “[t]o provide for organizing, arming, and
disciplining, the Militia, and for governing such Part of them as
may be employed in the Service of the United States, reserving to
the States respectively, the Appointment of the Officers, and the
Authority of training the Militia according to the discipline
prescribed by Congress.” (Id., art. 1, § 8, cl. 16.) The
Second Militia Clause is the primary basis of appellant’s
constitutional argument in the instant case.
A brief review of the genesis of the Second Militia Clause is
instructive on the issues before us.6 As one commentator has
6 We note the excellent discussions of the constitutional
underpinnings of the Militia Clauses in Stirling and Lovato, With
All Due Respect, Mr. President, We’re Not Going To Follow That
Order: How and Why States Decide Which Federal Military Rules
Apply to State National Guard Personnel (2017) 22 Tex. Rev. L. &
Pol. 95 (Stirling & Lovato); Bahar, The Presidential Intervention
Principle: The Domestic Use of the Military and the Power of the
Several States (2014) 5 Harv. Nat. Sec. J. 537 (Bahar); and
18
summarized the conflict among the Founding Fathers, “[i]n
the . . . militia debate was the fight for the heart of the new
nation.” (Bahar, supra, 5 Harv. Nat. Sec. J. at p. 545.) That
debate centered around whether the new nation should rely on
the existing state militias or a federal standing army for
protection against foreign threats. George Washington
particularly noted the threats of “native tribes and British and
Spanish colonies surround[ing] the fledging United States.”
(Id. at p. 546.)
Those Founding Fathers arguing in favor of relying on
state militias remembered all too well the threat to liberty the
British army had imposed during colonial times. “[T]he
revolutionary experience resurrected an old ideal of the militia as
the guardian of liberty, ever ready to defend against the abuses of
a tyrannical government and its standing army of professional
soldiers. With independence at hand, and attention turned to
securing the emerging nation, it was hard to shed this
romanticism of the militia and the notion that it was dangerous
for the government to have its very own army, to control a force
apart from the people themselves.” (Mazzone, supra, 53 UCLA
L.Rev. at pp. 74–75.) Thus Luther Martin argued in favor of the
“local expertise” of state militias and their check on “the power of
the President and a national army.” (Bahar, supra, 5 Harv. Nat.
Sec. J. at p. 545.) “Theirs was the ideal of Cincinnatus, dropping
the plow for the sword . . . only when necessary.” (Ibid.)
Those Founding Fathers on the other side of the debate
were concerned about the effectiveness of a confederation of state
Mazzone, The Security Constitution (2005) 53 UCLA L.Rev. 29
(Mazzone).
19
militias. John Jay commented on, among other impracticalities,
the absence of a commander, terms of payment, and a means to
settle inter-militia disputes. (Bahar, supra, 5 Harv. Nat. Sec. J.
at p. 547.) Jay argued in favor of a strong national government,
“which could institute ‘uniform principles’ and render the
individual state militias ‘more efficient than if divided into
thirteen . . . independent bodies.’ ” (Ibid., alteration in original.)
In Federalist No. 29, entitled “Concerning the Militia,”
Alexander Hamilton similarly emphasized the need for uniform
rules: “It requires no skill in the science of war to discern that
uniformity in the organization and discipline of the militia would
be attended with the most beneficial effects, whenever they were
called into service for the public defence. It would enable them to
discharge the duties of the camp and of the field with mutual
intelligence and concert; an advantage of peculiar moment in the
operations of an army: And it would fit them much sooner to
acquire the degree of proficiency in military functions, which
would be essential to their usefulness. This desirable uniformity
can only be accomplished by confiding the regulation of the
militia to the direction of the national authority.” (The Federalist
No. 29, p. 181 (J. Cooke ed. 1961); see Stirling & Lovato, supra,
22 Tex. Rev. L. & Pol. at p. 101.)
In the end, the Second Militia Clause was a compromise
among these competing views. “States agreed to grant certain
aspects of their power over their militias (now called national
guards) to the federal government in exchange for federal
armaments and pay.” (Stirling & Lovato, supra, 22 Tex. Rev. L.
& Pol. at p. 99; see Perpich, supra, 496 U.S. at p. 340.)
20
2. The Second Militia Clause and principles
of federalism do not bar a state from
incorporating federal law concerning
appointment and termination of
appointment of National Guard officers
The thrust of appellant’s constitutional argument is that it
is inconsistent with the Second Militia Clause for a state to allow
a federal process such as a selective retention board to dictate
who may serve as a state military officer.
We see no inconsistency. The Second Militia Clause
protects the states’ right to appoint militia officers. We accept for
purposes of this appeal that a corollary of the states’ right to
appoint officers is the power to terminate those appointments.
Appellant cites no authority suggesting that a state cannot
exercise that right by looking to a state officer’s federal status to
determine whether to retain or separate that officer. The
Second Militia Clause might bar a federal statute or regulation
from mandating that a state terminate an officer’s appointment
upon failure of federal selective retention, but nothing prevents a
state from deciding of its own accord to terminate officers’
appointments on that basis. Under those circumstances, the
state retains the ultimate authority to decide who serves in its
National Guard, consistent with the Second Militia Clause.
(See Stirling & Lovato, supra, 22 Tex. Rev. L. & Pol. at p. 116
[“Federal military rules are rightly understood as suggestive
rather than prescriptive. States have the final say as to federal
rules’ applicability to the [National] Guard forces under state
control”].)
Appellant also cites no authority suggesting that a state
cannot adopt federal criteria by incorporation rather than by
21
enacting identical state laws. (See, e.g., Farm Raised Salmon
Cases (2008) 42 Cal. 4th 1077, 1087 [Health and Safety Code
incorporates food labeling regulations and amendments adopted
pursuant to Federal Food, Drug, and Cosmetic Act (21 U.S.C.
§ 301 et seq.)].) Indeed, a requirement that states wishing to
adopt federal law must do so by enacting identical state laws
would be unduly cumbersome.
Appellant’s cited cases, all of which address the federal
government’s power to compel certain actions by states, are
inapposite. In Gregory v. Ashcroft (1991) 501 U.S. 452 (Gregory),
the U.S. Supreme Court held that a federal statute prohibiting
age discrimination did not override a state constitutional
provision mandating that state judges retire by age 70, in part
because to conclude otherwise “would upset the usual
constitutional balance of federal and state powers.” (See id. at
pp. 455, 460, 473.) Gregory considered whether federal authority
trumped state authority; it did not suggest that a state could not
under its own authority adopt federal law as its own, or use
federal criteria to guide state decisions, the question at issue in
the instant case.
New York v. U.S. (1992) 505 U.S. 144 (New York)
invalidated a provision of a federal law requiring states either to
assume ownership of radioactive waste generated within their
borders or enact regulations “according to the instructions
of Congress.” (Id. at p. 175.) The invalid provision
“ ‘commandeer[ed] the legislative processes of the States by
directly compelling them to enact and enforce a federal
regulatory program.’ ” (Id. at p. 176.) Again, this case considered
whether Congress could compel states to regulate according to
22
federal requirements; it did not bar states from voluntarily
incorporating federal regulations or criteria into state law.
Printz v. U.S. (1997) 521 U.S. 898 (Printz) held that
Congress could not compel state law enforcement officials to
conduct background checks pursuant to a federal firearm
regulatory scheme. (Id. at p. 933.) The Supreme Court held that
just as “Congress cannot compel the States to enact or enforce a
federal regulatory program,” Congress also “cannot circumvent
that prohibition by conscripting the State’s officers directly.”
(Id. at p. 935.) Printz has no bearing on the instant question
whether a state may require its own officials to follow federal
criteria.7
Appellant notes that the Supreme Court in New York
rejected an argument that the challenged statutory provision was
constitutional because the states had consented to its enactment;
“Where Congress exceeds its authority relative to the
States, . . . the departure from the constitutional plan cannot be
ratified by the ‘consent’ of state officials.” (New York, supra,
505 U.S. at p. 182.) Appellant argues that, under New York,
California could not “consent[ ] to the exercise of federal power
over the appointment of California’s militia officers.”
Incorporation of federal regulations is not “consent” to be
governed by federal power, however; instead, it is a decision by
state authorities to exercise state power according to the same
regulatory criteria applied by federal authorities. The mandate
comes from the state, not the federal government.
7 Plaintiff claims that he cited Gregory, New York, and
Printz before the trial court but the trial court failed to consider
the cases in its ruling. Assuming this is so, plaintiff suffered no
prejudice because the cases are inapposite.
23
To the extent appellant is claiming that the provisions of
NGR No. 635–100 under which he was separated from CAARNG
violate the Second Militia Clause, and therefore cannot be
incorporated into state law, we disagree. NGR No. 635–100
does not purport to mandate whom states appoint or terminate as
officers, and expressly recognizes states’ authority in this regard.
It acknowledges that “[t]he termination of an officer’s
appointment in the Army National Guard is a function of the
State.” (NGR No. 635–100, subd. (2)(a).) It further provides that
a state National Guard should not terminate an officer’s state
appointment under the regulation if “contrary to State law and
regulations.” (Id., subd. (5)(a).) Thus, consistent with the Second
Militia Clause, states retain their constitutional authority to
appoint and terminate the appointments of National Guard
officers.
We also reject appellant’s assertion that NGR No. 635–102
impermissibly “transfer[s] appointment authority from our
legislature to our Adjutant General,” who is empowered under
NGR No. 635–102 to modify or disapprove the selective retention
board’s decision. (NGR No. 635–102, subd. (5)(j).) Accepting for
the sake of argument that the Adjutant General acts in a state,
rather than federal, capacity when reviewing the board’s
decision, nothing prevents the Legislature from delegating
appointment authority to the Adjutant General, either expressly
or through incorporation of NGR No. 635–102.
24
B. Appellant fails to show the trial court erred in
concluding that the Military and Veterans Code
incorporates NGR No. 635–100,
subdivisions (5)(a)(8) and (5)(a)(22)
Having concluded that a state may incorporate federal law
regarding the appointment and termination of appointments of
state National Guard officers, we now address the question of
whether the Legislature has done so.
The Military and Veterans Code8 governs the California
Military Department, including the National Guard. (See §§ 50,
51.) Numerous provisions of the Code reference or incorporate
federal law. Section 100 provides, “The intent of this code is to
conform to all acts and regulations of the United States affecting
the same subjects, and all provisions of this code shall be
construed to effect this purpose.” Section 101 provides, “All acts
of the Congress of the United States relating to the control,
administration, and government of the Army of the United States
and the United States Air Force and relating to the control,
administration, and government of the United States Navy, and
all rules and regulations adopted by the United States for the
government of the National Guard and Naval Reserve or Naval
Militia, so far as the same are not inconsistent with the rights
reserved to this State and guaranteed under the Constitution of
this State, constitute the rules and regulations for the
government of the militia.”
The enacting legislation for the Military and Veterans
Code, including sections 100 and 101, made clear an intent to
8 Further unspecified statutory citations are to the
Military and Veterans Code.
25
incorporate not only existing federal law, but future federal
enactments as well: “Whenever any reference is made . . . to any
law of . . . the United States or to . . . the rules and regulations of
the United States Army or Navy departments, such reference
shall apply to all amendments and additions thereto now or
hereafter made.”9 (Stats. 1935, ch. 389, § 9.)
Although the trial court did not discuss the issue
expressly, it appears the trial court implicitly concluded that
NGR Nos. 635–100 and 635–102 are “rules and regulations
adopted by the United States for the government of the National
Guard,” and thus within the subject matter incorporated under
section 101. Appellant does not contest this implicit finding on
appeal, nor do the parties address it. We thus deem the issue
9 Although not raised in his briefing, at oral argument
plaintiff referred to dictum from a 1937 California Supreme
Court case stating, “It is, of course, perfectly valid to adopt
existing statutes, rules, or regulations of Congress or another
state, by reference; but the attempt to make future regulations of
another jurisdiction part of the state law is generally held to be
an unconstitutional delegation of legislative power.” (Brock v.
Superior Court (1937) 9 Cal. 2d 291, 297.) We have found no case
in which the Supreme Court invalidated a statute on this basis.
In any event, the principle is inapt in the context of the National
Guard, which depends on conformance with federal criteria to
maintain federal funding. (See Stirling, supra, 18 Cal.App.5th at
p. 1152; Charles v. Rice (1st Cir. 1994) 28 F.3d 1312, 1315–1316
(Charles) [“States that fail to comply with federal regulations risk
forfeiture of federal funds allocated to organize, equip, and arm
state Guards”].) Such conformance would be impracticable were
we to require the Legislature or Adjutant General continually to
amend state law to conform to changes in federal law.
26
conceded and express no opinion on it.10 Appellant instead
challenges the trial court’s conclusion that the provisions of
NGR Nos. 635–100 and 635–102 applied to appellant “are not
inconsistent with the rights reserved to this State.” (§ 101.)
On that issue we agree with the trial court.
Among “the rights reserved to this State” (§ 101) is the
right reserved under the Second Militia Clause to appoint
National Guard officers. Thus, read alone, section 101 arguably
suggests that the Legislature did not intend to incorporate
federal law insofar as it related to the appointment (and, by
extension, termination) of state National Guard officers. Other
provisions of the Military and Veterans Code, however, make
clear that the Legislature intended to incorporate federal law
governing appointments as well. Section 220 provides,
“All officers shall be commissioned by the Governor. All
appointments of officers shall be made and all vacancies shall be
filled in the manner provided by the laws and regulations of the
United States Army and United States Air Force.” (§ 220, italics
10 We note that in regard to “acts of the Congress,” as
opposed to “rules and regulations,” section 101 incorporates not
only those acts relating to the “government” of the federal
military, but also acts relating to “control” and “administration”
of the military. This arguably suggests that the term
“government” as used in section 101 has a specific and limited
meaning, and would not include, at the very least, regulations
pertaining to the control and administration of the National
Guard. Because the parties do not address or attempt to define
“government” as used in section 101, and plaintiff has not
challenged the trial court’s implicit conclusion that the regulatory
provisions at issue concern “the government of the National
Guard,” we leave that question for another day.
27
added.) Section 222 provides, “Persons to be commissioned in the
National Guard shall be selected from those eligible for federal
recognition in accordance with Army and Air National Guard
Regulations promulgated from time to time by the Department of
the Army or the Department of the Air Force of the United States
and from former commissioned officers of the United States
Army, United States Air Force, United States Navy, or any
reserve component thereof, who were honorably separated
therefrom but are no longer eligible for federal recognition.”
(§ 222, italics added.)
These broadly stated incorporation provisions indicate an
intent by the Legislature to harmonize state law with federal law
regarding the National Guard, even in regard to the power of
officer appointments constitutionally reserved to the states. It is
unsurprising the Legislature should do so given the importance of
maintaining federal recognition of those in state service in order
to receive federal funding. (See Stirling, supra, 18 Cal.App.5th
at p. 1152; Charles, supra, 28 F.3d at pp. 1315–1316.)
Appellant argues our reading of section 220 broadly to
incorporate federal criteria for the appointment of officers is
inconsistent with legislative history. He asserts that section 220
“consolidated six previous laws (incorporating standard for
examinations on ‘knowledge of military affairs,’ medical fitness,
etc.) that were restated in a general manner intended as a
catchall for those specific issues harmonized with [section] 101.”
(Boldface omitted.) To the extent appellant is suggesting that we
must read section 220 to incorporate only the requirements of
earlier laws it replaced ignores the plain language of the statute,
which broadly incorporates federal law without regard to specific
criteria.
28
Appellant cites a 1948 opinion from the California Attorney
General, which overruled an earlier Attorney General opinion
concluding that federal regulations concerning assignment of
National Guard officers were incorporated into California law
under section 101. (11 Ops.Cal.Atty.Gen. 253, 262 (1948).) As
summarized in the 1948 opinion, the earlier opinion addressed
whether the Governor could assign a federally recognized state
National Guard officer to an inactive list without the officer’s
consent. (Ibid.) The earlier opinion answered in the negative:
Federal regulations, incorporated into state law under
section 101, provided that an officer must apply for such a
transfer. (11 Ops.Cal.Atty.Gen., at p. 262.)
The 1948 opinion disagreed with the earlier opinion’s
“assumption, made without a consideration of the authorities,
that the federal regulations concerning federal recognition and
commissions in the National Guard of the United States are
controlling because section 101 of the Military & Veterans Code
adopts the applicable federal laws and National Guard
regulations. This assumption is incorrect. To permit federal
regulations to govern the appointment and assignment of officers
of the State Militia would be ‘inconsistent with the rights
reserved to this state.’ ” (11 Ops.Cal.Atty.Gen., at p. 262.) The
1948 opinion concluded that “under the specific provisions of
section 101, the matter of the appointment and assignment of
officers is not governed by the federal regulations applicable to
the National Guard.” (11 Ops.Cal.Atty.Gen., at p. 262.)
The 1948 opinion’s conclusion that the Military and
Veterans Code does not incorporate federal regulations
concerning appointment of officers is in tension with section 220’s
directive that “[a]ll appointments of officers shall be made . . . in
29
the manner provided by the laws and regulations of the
United States Army and United States Air Force.” Indeed, the
opinion did not discuss section 220. In light of section 220’s
language expressly incorporating federal law on the subject of
officer appointments, we decline to adopt the 1948 opinion’s
conclusion.11
Appellant also cites Santin v. Cranston (1967)
250 Cal. App. 2d 438, which held that, although the Military and
Veterans Code incorporated “federal laws, rules and regulations”
for the purpose of “measur[ing] pay during service and the
allowances to be paid after retirement,” it did not incorporate
federal case law interpreting the effect and status of a pension,
specifically whether it was vested or not. (Santin, at p. 443.)
Santin has no bearing here, where the question is whether state
law incorporates federal regulations, not federal case law.
Appellant argues that Military and Veterans Code
sections 227 to 239 are the exclusive means by which an officer
may be separated from the National Guard, contending that
because the Legislature has specified particular grounds for
separation, the Legislature could not have intended also to adopt
additional grounds under federal law.
We are not persuaded that, in enacting specific provisions
governing separation of officers, the Legislature thereby intended
those express provisions to be exclusive; indeed, this
interpretation is in tension with the broad incorporation of
federal law, which necessarily includes provisions not specified
under state law. Nevertheless, to the extent federal law is
11 We express no opinion regarding the 1948 opinion’s
conclusion that federal regulations do not govern the assignment,
as opposed to appointment, of National Guard officers.
30
inconsistent with express provisions of state law governing the
appointment and separation of officers, state law must control
under the Second Militia Clause. (See 64 Ops.Cal.Atty.Gen. 750,
753 (1981) [§ 101 incorporates federal law within its subject
matter “only if such federal law is ‘not inconsistent’ with
pertinent state law”].)
Like the trial court, however, we see no inconsistency
between the federal regulatory provisions applied to appellant
and the Military and Veterans Code.12 Notably, state law
contains no selective retention process upon which the federal
process intrudes. Appellant argues section 234, providing that
the Governor “[a]t any time” may appoint an “efficiency board” to
evaluate the “moral character, capacity, and general fitness for
service of an officer,” is equivalent to a selective retention
process. Section 234 provides a mechanism to remove officers for
cause whenever the Governor deems it necessary; it is not
equivalent to the federal selective retention process, in which
officers otherwise fit for duty are honorably discharged upon
reaching 20 years of service.
Section 232 lists grounds upon which an officer’s
commission may be vacated, including “by death, by acceptance
by proper authority of resignation, by discharge on account of
inefficiency, for physical disqualifications, when dropped from the
rolls for an absence without leave for three months, by discharge
to accept a commission in the United States Army, United States
Air Force, United States Navy, or a reserve component thereof,
12 We do not decide whether other provisions in
NGR No. 635–100 not applied to plaintiff are inconsistent with
the Military and Veterans Code.
31
when transferred to the United States Army Reserve upon the
expiration of six months as a member of the Inactive National
Guard, upon a finding by the Adjutant General that the officer is
a security risk as a result of subversive activity, for personal
traits of character, or by dismissal pursuant to sentence of a
general court-martial.”13 (§ 232.) Again, given the broad
incorporation of federal law under sections 100, 101, 220, and
222, we do not interpret this list as exclusive, and therefore
do not read it as inconsistent with separation as a result of a
federal selective retention determination.
The other provisions in sections 227 through 239 that
relate to involuntary separation of officers, some of which overlap
with section 232, neither resemble nor conflict with the federal
selective retention process. Section 227 mandates retirement
upon reaching age 64; section 229 governs retirement for
incapacity; section 235 permits discharge for physical unfitness;
section 236 permits discharge for an absence without leave; and
section 237 permits dismissal upon sentence of a general court-
martial.
Appellant cites legislative history indicating that an earlier
version of section 232 included as a ground for vacation of
commission “reversion to reserve officer of the Army or Air Force
status after termination of federal recognition.” (Former § 232,
enacted by Stats. 1955, ch. 728, § 1.) The Legislature eliminated
this ground from section 232 in 1963. (See Stats. 1963, ch. 121,
13 The version of section 232 in effect at the time of
plaintiff ’s separation also authorized vacation of commission “by
permanent change of residence to a place outside this State,” and
lacked the word “for” before “personal traits of character.”
(Former § 232, enacted by Stats. 1963, ch. 121, § 1.)
32
§ 1.) Appellant argues we cannot construe the Military and
Veterans Code impliedly to contain a provision that the
Legislature expressly has removed. (See People v. Soto (2011)
51 Cal. 4th 229, 245 [“We cannot interpret [a statutory section] to
reinsert what the Legislature intentionally removed”].)
The trial court found, however, and appellant does not
dispute on appeal, that an officer who has lost federal recognition
may, upon application and qualification, serve in the State
Military Reserve, an entity “distinct from the National Guard.”
(§ 550; see also § 142, subd. (e)(2) [listing among those deemed on
“state active duty” those individuals “honorably separated from
service with . . . the federally recognized National Guard of any
state . . . with current membership in the State Military
Reserve”].) Although the Legislature by amending section 232
has permitted individuals to remain in state service despite loss
of federal recognition, it does not follow that the Legislature
intended that service to be in CAARNG, as opposed to in the
State Military Reserve or some other entity within the militia.
(See Holmes, supra, 90 Cal.App.4th at p. 306 [noting finding in
related federal case that the appellant held “ ‘an officer position
in the state and United States reserve groups that does not
require federal recognition and is not subject to being called into
federal service’ ”].) The amendment to section 232 therefore is
not inconsistent with our conclusion that the Military and
Veterans Code may incorporate a federal provision requiring
separation from CAARNG upon failure of selective retention and
loss of federal recognition.
Appellant invokes principles of statutory construction to
support his argument. He argues that “ ‘the expression of certain
things in a statute necessarily involves exclusion of other things
33
not expressed,’ ” and “ ‘a specific enactment governs over a more
general one.’ ” Appellant contends that the specific provisions of
sections 227 through 239 should prevail over the general
provisions of sections 100 and 101.
These principles have no application here. To the extent
the Military and Veterans Code has incorporated the specific
provisions of NGR Nos. 635–100 and 635–102 into California law,
we must read those federal provisions as if they expressly were
written into the Military and Veterans Code, alongside the
specific provisions of sections 227 through 239. Thus, contrary to
appellant’s position, the federal provisions are both “ ‘expressed’ ”
and as specific as the provisions of sections 227 through 239.
We also reject appellant’s premise that because some of the
express provisions regarding officer appointment and removal in
the Military and Veterans Code were enacted after section 101,
the latter statutes must prevail. Had the legislature intended
those later provisions to supersede applicable federal law, it could
have so specified, including by amending sections 100 and 101 to
narrow the scope of incorporation. Having not done so, we cannot
agree that the express provisions of the Military and Veterans
Code were intended to limit the incorporation of federal law to
the extent that law is not inconsistent with state law.
Appellant argues the Legislature could not have intended
state law concerning officers to track federal law because this
“would require our Legislature to authorize a massive increase in
funding and personnel to newly duplicate a multitude of
functions . . . obviously intended for the much larger federal
military.” At oral argument, appellant argued that interpreting
the Military and Veterans Code broadly to incorporate federal
law would render meaningless any provisions of the Code that
34
deviate from federal law. To be clear, we are not holding that the
Military and Veterans Code incorporates all federal law without
limitation, nor do we suggest that our holding invalidates any
existing provisions of state law, a question we need not address.
In this case, however, in which the federal regulatory provisions
at issue are “not inconsistent with the rights reserved to this
State and guaranteed under the Constitution of this State”
(§ 101), and appellant has not disputed the trial court’s implicit
finding that the regulatory provisions were “adopted by the
United States for the government of the National Guard” (ibid.),
appellant fails to show the trial court erred in deeming the
provisions incorporated into state law.
III. Appellant Has Failed To Show Prejudice From Any
Of The Trial Court’s Purported Procedural Errors
Appellant claims the trial court committed numerous
procedural and evidentiary errors. He objects that the trial court
did not allow live testimony or cross-examination, instead relying
on declarations. He asserts that the trial court failed to rule on
his objections and refused to grant his requests for judicial notice.
He claims the trial court’s findings of fact were erroneous and
indicate the court did not fairly consider his evidence. He argues
that one of respondents’ declarants, Chief Warrant Officer
Anthony C. Williamson, lacked personal knowledge of the
matters to which his declaration pertained, and the trial court
wrongly relied on Williamson not only for incorrect assertions of
fact but assertions of law as well.
Many of appellant’s claims of error are not well taken. We
note that a trial court has the discretion to decide a writ petition
on declarations and other documents as opposed to oral
testimony. (American Federation of State, County & Municipal
35
Employees v. Metropolitan Water Dist. (2005) 126 Cal. App. 4th
247, 263.) We further note that appellant’s written objections,
which specifically targeted Williamson’s testimony, were
untimely, filed several days after the deadline set by the
trial court, and thus the trial court properly declined to consider
them. Contrary to appellant’s assertion, the record indicates the
trial court granted many of his requests for judicial notice.
Appellant also fails to explain how these purported errors
prejudiced him. At minimum, appellant was required to show a
“ ‘reasonable probability that in the absence of the [purported]
error, a result more favorable to the appealing party would have
been reached.’ ” (Adams v. MHC Colony Park, L.P. (2014)
224 Cal. App. 4th 601, 614.) In his briefing, appellant makes
general claims of prejudice, and identifies some specific examples
of purported errors by the trial court, but never explains how
those errors affected the outcome of his case. These conclusory
assertions of prejudice are insufficient. (See id. at p. 615.)
With the assistance of oral argument, however, we have
identified two issues of disputed fact that merit further
discussion, although we conclude neither justifies reversal.
A. Substantial evidence supported the trial court’s
finding that appellant failed selective retention
Appellant disputes the validity of the memorandum
informing him he had failed selective retention, claiming there
was no evidence a selective retention board had ever met to
review his personnel file. Appellant contends the California
Military Department manufactured the document to deceive him
into believing that the federal government had withdrawn his
federal recognition. The trial court in its ruling did not address
this claim expressly, but we may presume it rejected it given its
36
ruling that CAARNG properly separated appellant on the basis of
failure of selective retention.
The trial court’s conclusion is supported by substantial
evidence. Williamson, who was responsible for CAARNG’s Office
of Personnel Management Branch, submitted a declaration
stating that the selective retention board had reviewed
appellant’s record, and attached the order from Haskins
convening the selective retention board and the memorandum
informing appellant he had failed selective retention. Although
appellant disputes the claims in Williamson’s declaration, the
trial court as the finder of fact was entitled to determine the
validity of the documents and credibility of Williamson’s
testimony, and we will not disturb that determination on appeal.
(See Santa Clara County Correctional Peace Officers’ Assn., Inc.
v. County of Santa Clara (2014) 224 Cal. App. 4th 1016, 1027
[when reviewing a “ ‘ “judgment based on affidavits or
declarations,” ’ ” a reviewing court “ ‘ “defer[s] to [the trial court’s]
determination of credibility of the witnesses and the weight of the
evidence” ’ ”].)
Appellant contends that Williamson lacked personal
knowledge of the matters in his declaration, and that the trial
court erred in not acknowledging appellant’s objections on that
and other bases. As discussed, however, appellant’s written
objections were untimely. Appellant claims his untimely
objections were “restatements” of earlier objections, but does not
identify where in the record he raised the earlier objections.
(See Schmidlin v. City of Palo Alto (2007) 157 Cal. App. 4th 728,
738 [appellant has duty to “refer us to the portion of the record
supporting his contentions on appeal”].)
Our own search reveals that appellant in his second
supplemental brief before the trial court claimed that, according
37
to “records,” Williamson was not in California at the time of the
selective retention proceeding and thus could not have personal
knowledge of it. In support, appellant cited to his written
objections, at the time still unfiled (and ultimately untimely
filed). Accepting for the sake of argument that this was a proper
objection, Williamson as a personnel officer nonetheless could
have personal knowledge of the records of the selective retention
proceeding (such as the convening order and the memorandum
informing appellant of the result), and we have not located, nor
has appellant identified on appeal, any timely objection to
Williamson authenticating those records. Appellant also does not
explain why those documents cannot constitute official records
establishing that the selective retention proceeding occurred (see
Evid. Code, § 1280), and has not directed us to any timely
objection he may have raised to the admissibility of those
documents. In the absence of objection to those documents, we
cannot conclude the trial court erred in relying on them.
B. The trial court did not err in concluding that
appellant transferred to the Army Reserve
Consistent with his contention that he was never rejected
by a federal selective retention board, appellant also denies that
he ever transferred to the Army Reserve, which was CAARNG’s
stated basis for his separation.
As discussed, substantial evidence supports the trial court’s
conclusion that appellant failed federal selective retention.
Having reached that conclusion, the trial court also could
conclude that, under 10 United States Code section 12213(b) and
NGR No. 635–102, subdivision (7)(a), appellant’s transfer to the
Army Reserve was automatic once he lost his federal recognition.
Even assuming appellant for some reason did not transfer to
38
the Army Reserve so as to justify his separation under
NGR No. 635–100, subdivision (5)(a)(8), CAARNG could still
separate him under subdivision (5)(a)(22) for failure of selective
retention, which is an alternative basis to affirm the trial court’s
decision to deny the writ.
DISPOSITION
The judgment is affirmed. Respondents are awarded their
costs on appeal.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
39