Legal Alerts Sep 05, 2019

Citizens’ Initiative Power Cannot Intrude on Public Agency’s Express Authority

Initiatives that Would Change County Government Structure Not Allowed, Calif. Appellate Court Rules

Proponents of a series of initiatives that would dramatically impact San Bernardino County submitted notices of intent to circulate the measures for signatures to the County Registrar. Procedurally, the County would customarily then prepare ballot titles and summaries.
In this case, the County Counsel’s office refused to do so for six of the nine initiatives submitted. San Bernardino is a charter county, and the contested initiatives sought to amend the County’s charter and code of ordinances to force significant changes to the structure of the County’s government. This included capping the number of certain designated employees, limiting compensation for county officials, and changing the County’s budget process. The proponents challenged County Counsel’s refusal.  In a single hearing on all six of the contested initiatives, the trial court agreed with the County that the six initiatives were invalid and may not be placed before the voters. The Court of Appeal agreed, affirming the trial court’s decision and awarding litigation costs to the County.
While the appellate court’s decision interprets California laws relating to charter counties, it impacts, to some extent, all California local government agencies subject to initiative and referendum by clarifying that a local electorate’s reach cannot interfere with fundamental government structure and operations.   
In Gates v. Blakemore, published Aug. 22, the issue was how far the local electorate’s state constitutional rights to initiative and referendum extends when separate authority gives express power to the public agency to oversee such ballot measures and elections. Among the changes aimed at County voters was whether they supported limits on budget expenditures that were, in turn, based on compensation limits for certain County officials and tied to median household income within the County. The contested initiatives would have also eliminated the County’s existing chief executive position in favor of the chair of the County’s elected Board of Supervisors, who would have an enlarged role enforcing the budgetary limitations also sought by proponents. The contested initiatives would have placed limitations on the County’s elected, appointed and other public employees by setting a ratio between the number of county officials to the number of residents served. For example and with limited exceptions, one county employee for every 108 residents.
The petitioners argued the trial court wrongly engaged in “preelection review” of the proposed initiatives, and that the contested initiatives were not invalid. The Court of Appeal reiterated that, while generally it is more appropriate to review constitutional and other challenges to ballot propositions and initiatives after the voters have spoken, case law supports preelection review when there are serious questions about a ballot proposal’s validity. In such instances, where the contested ballot proposal can be resolved as a matter of law, and before unnecessary time and effort are expended regarding a proposed election measure, a preelection review can and should be undertaken. As a charter county, San Bernardino has the constitutional authority to set “the number of county employees, their duties, and their compensation.” Accordingly, to the extent the contested initiatives would infringe on the County’s authority in this arena, they were invalid. The County also retains express authority under the County Budget Act as to the procedures for preparing and managing county budgets. To the extent the contested initiatives would alter that process, they were likewise invalid.
While the decision cites to provisions of the California Constitution applicable only to charter counties like San Bernardino, in invalidating the contested initiatives, the decision has broader impact for all public agencies in the State, both charter and general law. The Court of Appeal ruled that the power of initiative or referendum cannot interfere with express authority codified by law, whether statutory or Constitutional. This finding likely sets up further conflicts between engaged electorates seeking to alter how governments provide essential services in California and the public agency tasked with certifying such ballot measures for the voters.
If you have any questions about this opinion or how it may impact your agency, please contact the author of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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