Measure K May 2023 Decision
Measure K May 2023 Decision
Measure K May 2023 Decision
DIVISION TWO
v. OPINION
NADIA RENNER,
APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez,
The Red Brennan Group and Aaron D. Burden; Briggs Law Corporation and Cory
The Sutton Law Firm, Bradley W. Hertz, and Nicholas L. Sanders for Plaintiff and
Appellant.
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Jolena E. Grider, Deputy County Counsel, for Defendant and Respondent.
amended the county charter so as to (1) limit a supervisor to a single four-year term and
(2) limit a supervisor’s compensation to $5,000 a month. At the same time, the voters
The trial court ruled that the one-term limit is unconstitutional. It also ruled that
the compensation limit is constitutional, but, because Measure K is not severable, it, too,
must be struck down. Finally, it ruled that Measure K did not apply to the new
supervisors (although it acknowledged that the issue was moot, in light of its other
rulings).
(4) The trial court erred by enjoining the certification, authentication, recordation,
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The San Bernardino County Board of Supervisors (Board) cross-appeals. It
contends that:
functions.
County Code section 13.0614 (section 13.0614), which provides for supervisors’
compensation.
We will hold that the one-term limit is constitutional. We will further hold that
supervisors’ compensation can be set by initiative. The Board has not shown that the
compensation limit violates minimum wage laws. The Board also has not shown that the
compensation limit conflicts with section 13.0614; even assuming it does, the voters can
amend or abrogate an ordinance not only by referendum, but also by initiative. Because
both the one-term limit and the compensation limit are valid, we need not decide whether
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Measure K is severable. As to whether Measure K applies to the new supervisors, we
reach a split decision: The one-term limit applies, but the compensation limit does not. 1
and/or moot.
A. Statement of Facts.
The following facts are taken from Renner’s statement of facts and statement of
the case, which the Board concedes are accurate; from the declaration, and exhibits
introduced below; and from matters of which the trial court took judicial notice.
Measure K amends the county charter. It has four key provisions. First, it
provides that a supervisor can serve only one four-year term. An unexpired term counts
toward the four-year limit, but only if it has two or more years left to run when
Measure K goes into effect. Previously, supervisors were limited to three consecutive
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Counties. Third, it provides: “To the extent permitted by law, the provisions of this
Another initiative on the ballot at the same time, Measure J, completely revised
and restated the county charter. It, too, passed, but barely, with only 50.72 percent of the
votes. Measure J would have limited supervisors to three terms (consecutive or not) and
would have given them a salary set at 80 percent of a superior court judge’s salary and
the same benefits as department heads. However, because Measure K got more votes, it
supersedes Measure J to the extent that they conflict. (Elec. Code, §§ 9102, 9123; see
Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d
744, 765-768.)
At the same time, new supervisors Joe Baca, Jr., Col. Paul Cook, and Dawn Rowe
were elected to the Board. On December 7, 2020, they were sworn in. On December 8,
2020, the Board (including the newly elected supervisors) certified the results of the
election.
Meanwhile, on December 2, 2020, the Board filed a combined complaint and writ
petition, seeking a declaration that Measure K was invalid plus an injunction and a writ of
mandate preventing its enforcement. The only named defendant was Lynna Monell, in
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her official capacity as the Clerk of the Board. However, the trial court gave Renner
leave to intervene.
On January 8, 2021, the trial court granted the Board’s application for a temporary
The case was tried to the court as a writ petition, based on trial briefs and oral
The trial court granted the petition. It ruled that the one-term term limit was
unconstitutional. It further ruled that the compensation limit was constitutional; however,
it was not severable, and therefore Measure K as a whole was invalid. Finally, it ruled
that Measure K was prospective only, and therefore it did not apply to the new
supervisors. However, it acknowledged that this issue was moot in light of its other
rulings.
On October 4, 2021 — after the trial court ruled — Assembly Bill No. 428 (2021-
2022 Reg. Sess.) (AB 428) was enacted (Stats. 2021, ch. 462, p. 6507), and on January 1,
2022, it went into effect. AB 428 was enacted specifically in response to Measure K.
(Assem. Com. on Elections, Analysis of Assem. Bill No. 428 (2021-2022 Reg. Sess.) as
amended Mar. 18, 2021, p. 3.) It amended Government Code section 25000, subdivision
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“(1) Notwithstanding any other provision of law, the board of supervisors of any
general law or charter county may adopt or the residents of the county may propose, by
initiative, a proposal to limit to no fewer than two terms or repeal a limit on the number
of terms a member of the board of supervisors may serve on the board of supervisors.
Any proposal to limit the number of terms a member of the board of supervisors may
“(2) The changes made to this subdivision by the act that added this paragraph
shall not affect any term limits that were legally in effect prior to January 1, 2022 . . . .”
It also amended Government Code section 25300, subdivision (b) so that it now
“The board of supervisors shall prescribe the compensation of all county officers,
including the board of supervisors, and shall provide for the number, compensation,
II
APPEALABILITY
The trial court issued a “ruling” granting the mandate petition. It did not enter a
formal judgment. It also did not expressly rule on the Board’s second (injunction) and
third (declaratory relief) causes of action. Moreover, as far as the record shows, it did not
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There is a preliminary question of whether the ruling is appealable. We conclude,
constitute[] a final judgment for purposes of an appeal, even if the order is not
Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 1409; cf. Natomas
1013, 1027.)
“[A] ruling on a petition for writ of mandate is not appealable if other causes of
action remain pending between the parties. [Citation.]” (Canandaigua Wine Co., Inc. v.
County of Madera (2009) 177 Cal.App.4th 298, 302.) But “an order constitutes a final
judgment despite other causes of action remaining if the order effectively disposes of the
Here, the trial court’s ruling effectively resolved the cause of action for an
. . . .” It also effectively resolved the cause of action for declaratory relief, again by
as the preparation of another order or judgment [citation], and disposed of all issues
between all parties.” (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th
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579, 583.) Moreover, it is clear from the record that the parties themselves did not
III
Measure D was enacted in 2022, while this appeal was pending. It would
supersede Measure K — if Measure D is valid. A trial court upheld Measure D, but its
validity is currently before this court in The Red Brennan Group v. Jimenez et al.,
E080868. So far, nothing has happened in that case, other than the filing of the Civil
so before we decide it — to say nothing of how much time any subsequent Supreme
Court review will consume. With all respect to our dissenting colleague, Measure D is
irrelevant.
The fact that Measure D has not yet been struck down, and thus is presumptively
valid, does not make this case moot. “A case becomes moot when events ‘“render[] it
impossible for [a] court, if it should decide the case in favor of plaintiff, to grant him any
effect[ive] relief.”’ [Citation.]” (In re D.P. (2023) 14 Cal.5th 266, 276, italics added.) If
we dismiss this case as moot, and if Measure D is then struck down, any relief we grant
this case back to life again. And even if Measure D is eventually upheld, this case still
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will not be moot; there would still be a live issue regarding the supervisors’ compensation
The only even arguable question is whether we should stay this appeal pending the
outcome of the Measure D litigation. There is not even any pending request for a stay;
before oral argument, the Board requested a stay, but we denied it. We see no reason
why the appeal filed later should have precedence over the one filed earlier. Renner has
paid her filing fee; the parties have fully briefed the appeal; prior to oral argument, we
drafted and issued a tentative opinion; and we heard oral argument. Courts have no
jurisdiction to decide moot cases, On the flip side, however, “[a] court is tasked with the
duty ‘“to decide actual controversies by a judgment which can be carried into effect
. . . .”’ [Citation.]” (In re D.P., supra, 14 Cal.5th at p. 276, italics added.) It is time to
IV
The trial court ruled that the one-term limit violates “voters’ and incumbents’ 1st
“It is beyond cavil that ‘voting is of the most fundamental significance under our
constitutional structure.’ [Citation.] It does not follow, however, that the right to vote in
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any manner and the right to associate for political purposes through the ballot are
absolute. [Citation.]” (Burdick v. Takushi (1992) 504 U.S. 428, 433 (Burdick).)
“Election laws will invariably impose some burden upon individual voters. Each
provision of a code, ‘whether it governs the registration and qualifications of voters, the
selection and eligibility of candidates, or the voting process itself, inevitably affects — at
least to some degree — the individual’s right to vote and his right to associate with others
“A court considering a challenge to a state election law must weigh ‘the character
and magnitude of the asserted injury to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put
forward by the State as justifications for the burden imposed by its rule,’ taking into
consideration ‘the extent to which those interests make it necessary to burden the
“Under this standard, the rigorousness of our inquiry into the propriety of a state
election law depends upon the extent to which a challenged regulation burdens First and
Fourteenth Amendment rights. Thus, . . . when those rights are subjected to ‘severe’
compelling importance.’ [Citation.] But when a state election law provision imposes
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Amendment rights of voters, ‘the State’s important regulatory interests are generally
sufficient to justify’ the restrictions. [Citations.]” (Burdick, supra, 504 U.S. at p. 434.) 3
“This latter, lesser scrutiny is not ‘pure rational basis review.’ [Citation.] Rather,
‘the court must actually “weigh” the burdens imposed on the plaintiff against “the precise
interests put forward by the State,” and the court must take “into consideration the extent
to which those interests make it necessary to burden the plaintiff’s rights.”’ [Citation.]
Review under this balancing test is ‘quite deferential’ . . . . [Citation.]” (SAM Party of
New York v. Kosinski (2d Cir. 2021) 987 F.3d 267, 274.)
“‘Courts will uphold as “not severe” restrictions that are generally applicable,
even-handed, politically neutral, and which protect the reliability and integrity of the
election process. [Citation.] . . .’ [Citation.] ‘Courts will strike down state election laws
as severe speech restrictions only when they significantly impair access to the ballot,
stifle core political speech, or dictate electoral outcomes.’ [Citation.]” (Rawls v. Zamora
Recently, one federal appellate court held that the Anderson-Burdick test is
“inapposite” to the analysis of term limits. (Kowall v. Benson (6th Cir. 2021) 18 F.4th
542, 547, cert. den. (2022) ___ U.S. ___ [143 S. Ct. 88].) As we will discuss, however,
controlling California Supreme Court authority requires us to apply the Anderson-
Burdick test.
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B. Whether the One-Term Limit Is “Severe.”
The trial court ruled that the one-term limit was “severe” because it “is not merely
about limiting the term but limiting the term to one time . . . .”
Proposition 140, which imposed lifetime term limits of two four-year terms per state
senator and three two-year terms per state assemblymember. (See Eu at pp. 502-506,
518.)
The court began by saying: “[T]he initiative power must be liberally construed to
promote the democratic process. [Citation.] Indeed, it is our solemn duty to jealously
guard the precious initiative power, and to resolve any reasonable doubts in favor of its
exercise. [Citation.] As with statutes adopted by the Legislature, all presumptions favor
the validity of initiative measures and mere doubts as to validity are insufficient; such
It then held that strict scrutiny was not required because the term limits did not
have a “serious impact on First Amendment freedoms of speech and association,” as they
“d[id] not affect speech interests and . . . impact[ed] all political parties on an equal basis.
[Citation.]” (Eu, supra, 54 Cal.3d at p. 515.) Rather, the term limits were entitled to
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In Bates v. Jones (9th Cir. 1997) 131 F.3d 843 (en banc) (Bates), cert. den. (1998)
523 U.S. 1021, the Ninth Circuit Court of Appeals similarly upheld Proposition 140. It
held that its impact on the plaintiffs’ claimed “right to vote for the candidate of one’s
choice and . . . right of an incumbent to again run for his or her office” was “not severe.”
(Id. at p. 847.) It explained that “term limits on state officeholders is [sic] a neutral
candidacy qualification, such as age or residence, which the State certainly has the right
to impose. [Citation.] With regard to incumbents, they may enjoy the incumbency of a
single office for a number of years, and . . . they are not precluded from running for some
other state office. [¶] Most important, the lifetime term limits do not constitute a
Significantly, the Board has not cited any case striking down any term limits on
2. Application here.
Under Eu and Bates, at least as a general rule, term limits are not so “severe” as to
trigger strict scrutiny. The trial court distinguished those cases, however, on the ground
that a one-term lifetime limit is “severe.” In light of the way “severe” has been
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In Eu, the court concluded that the term limits there were not severe because they
p. 516.) They were not based on the content of protected speech. (Id. at p. 515.) “They
impact[ed] all political parties on an equal basis. [Citation.]” (Ibid.) A one-term limit is
In Bates, the court concluded that the same term limits were not severe because (1)
they were “neutral,” (2) they allowed incumbency “for a number of years” and did not
preclude an incumbent from running for a different office, and (3) they did not
distinguish “on the basis of the content of protected expression, party affiliation, or
inherently arbitrary factors such as race, religion, or gender.” (Bates, supra, 131 F.3d at
The only argument to the contrary is that it allows incumbency for a lesser
“number of years” than the term limits in Eu and Bates. Those limits, however, while
they were not one-term limits, allowed a state senator to serve for no more than eight
years and a state assembly member to serve for no more than six years. The difference
between the six or eight years there and the four years here is not sufficient to be
constitutionally significant — particularly when the term limits here are similarly neutral
and nondiscriminatory and do not preclude an incumbent from holding any other office.
Four years is ample time for a supervisor to at least attempt to tick off all the boxes on his
or her legislative to-do list. In this respect, the Board, with only five members, is very
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different from the California Senate, with 40 members, or the California Assembly, with
memberships both play a role. By contrast, a newly elected supervisor can hit the ground
running. 4 The Board does not point to anything that a supervisor could accomplish in six
Limit.
The trial court also ruled that, even assuming Measure K’s one-term limit was not
“severe,” “the stated reason [for it] is not sufficient to justify imposing the burden [of]
“Additionally, . . . the desire to ensure a candidate seeks to serve the public interest
the interest of the voters at least for one or two additional terms of office. And a
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1. Relevant case law.
In Eu, the Supreme Court balanced the claimed injury to First and Fourteenth
First, it considered “the nature of the injury to the rights affected . . . .” (Eu,
supra, 54 Cal.3d at p. 517; see id. at pp. 517-519.) It concluded that the term limits “do[]
affect the rights of voters and candidates to a degree . . . .” (Id. at p. 519.) With respect
to candidates, however, the impact was “mitigate[d]” by three factors: “First, the affected
incumbent is not barred from seeking any other public office . . . . Second, the term
limitations arise only after the incumbent already has had the opportunity to serve a
significant period in office . . . .” (Id. at p. 518.) Third, the term limits in most instances
did not count terms served before they went into effect. (Ibid.)
Similarly, with respect to voters, it was unclear whether a right to vote for a
particular candidate even existed. (Eu, supra, 54 Cal.3d at p. 519; see also id. at pp. 516,
518.) In any event, the court accepted the argument that the term limits there “d[id] not
truly impair the franchise, for the voters retain the basic fundamental right to cast their
ballots for the qualified candidate of their choice.” (Id. at p. 519; see also ibid
[“mitigating aspects[] include[e] the voters’ continued right to vote for any qualified
candidates”].)
Second, it considered “the interests asserted by the state as justifications for that
injury . . . .” (Eu, supra, 54 Cal.3d at p. 517; see id. at pp. 520-522.) It observed that
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themselves appear in over twenty state constitutions, and exist in the Twenty-second
Amendment to the Constitution of the United States with regard to the Presidency. The
universal authority is that restriction upon the succession of incumbents serves a rational
public policy and that, while restrictions may deny qualified men an opportunity to serve,
as a general rule the over-all health of the body politic is enhanced by limitations on
patronage and attendant capacities to deliver favorably disposed voters to the polls,’
‘fears of an entrenched political machine which could effectively foreclose access to the
political process,’ and the belief that regularly disrupting those ‘machines’ ‘would
stimulate criticism within political parties’ and ‘insure a meaningful, adversary, and
racial, or geographic minorities are most likely where a political figure, political party, or
political interest group can rely upon electorate inertia fostered by the hopelessness of
Cal.3d at p. 521.)
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Third, it considered “the necessity for imposing the particular burden affecting the
plaintiff’s rights, rather than some less drastic alternatives.” (Eu, supra, 54 Cal.3d at
p. 517; see id. at pp. 522-524.) It noted that “incumbents do indeed appear to enjoy
considerable advantages over other candidates. [Citations.]” (Id. at p. 523.) “It is true
. . . that [the proponents] have not offered evidence to support all of the various premises
on which [the term limits are] based. But . . . a state need not demonstrate empirically all
of the various evils that its regulations seek to combat . . . .’ [Citation.]” (Id. at p. 524.)
legislators, decreased fringe and pension benefits, and additional incentives for early
retirement, would have been sufficient to promote and accomplish the state interests
previously discussed.” (Eu, supra, 54 Cal.3d at pp. 522-523.) The court responded that
“[r]ealistically, only a lifetime ban could protect against various kinds of continued
that would afford ‘career politicians’ with independent resources little incentive to
“[W]e conclude,” the court said, “the interests of the state in incumbency reform
outweigh any injury to incumbent office holders and those who would vote for them.”
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(Eu, supra, 54 Cal.3d at p. 524.) Indeed, the court observed, “it is unlikely we would
By contrast, Bates upheld the state’s justification for the term limits with little
discussion. It said, “[A] lack of term limits may create ‘unfair incumbent advantages.’
Long-term entrenched legislators may obtain excessive power which, in turn, may
discourage other qualified candidates from running for office or may provide the
incumbent with an unfair advantage in winning reelection.” (Bates, supra, 131 F.3d at
p. 847.) “California voters apparently perceived lifetime term limits for elected state
restoring competitive elections. This was their choice to make. [Citation.]” (Ibid.)
2. Application here.
in Eu. It must be remembered that review under this framework is deferential — all the
more so when the electoral restriction being analyzed was enacted by initiative.
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a. The nature of the injury to the rights affected.
Federal courts have held that voters have no right to vote for a particular
candidate. (Citizens for Legislative Choice v. Miller (6th Cir. 1998) 144 F.3d 916, 921;
Stiles v. Blunt (8th Cir. 1990) 912 F.2d 260, 266 [voters do not have “an absolute right to
Eu acknowledged this. (Eu, supra, 54 Cal.3d at pp. 516, 518.) However, it noted
that, at least at the time, Canaan v. Abdelnour (1985) 40 Cal.3d 703, 714-716 (Canaan)
was to the contrary. (Eu, supra, 54 Cal.3d at p. 516.) Canaan had held that “[a] ban on
write-in voting affects . . . the right of . . . voters to cast ballots for the candidates of their
choice.” (Canaan, supra, at p. 715.) Eu concluded that, while term limits “affected . . .
the voters’ right to reelect the incumbent” (Eu, supra, at p. 517; see also id. at p. 519), the
existence and scope of this right were “unclear”; hence, “the legal impact of [term limits]
After Eu was decided, the Supreme Court overruled Canaan. (Edelstein, supra,
29 Cal.4th at p. 183.) While the extent to which Edelstein overruled particular portions
of Canaan is open to debate (see ibid.), Edelstein did disavow a specific right to vote for
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a particular candidate in favor of a more general right “to make free choices and to
associate politically through the vote . . . .” (Id. at pp. 175, 177-178, 182-183.)
Term limits do not affect these general rights. Voters still have the right to make
free choices and to associate politically through the vote. As in Eu, the term limits here
“do not truly impair the franchise, for the voters retain the basic fundamental right to cast
their ballots for the qualified candidate of their choice.” (Eu, supra, 54 Cal.3d at p. 519.)
In her reply brief, Renner argues that candidates do not have a fundamental right
to run for public office. She forfeited this contention by failing to raise it below. (Delta
Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1074.) She further forfeited it
by failing to raise it in her opening brief. (Raceway Ford Cases (2016) 2 Cal.5th 161,
178.)
The California Supreme Court has held that “[t]he right to seek public office . . .
[is] fundamental.” (Canaan, supra, 40 Cal.3d at p. 727.) “There has been some
suggestion in the case law that the right to be a candidate for public office may not be
fundamental in and of itself. [Citations.] However, this court has described the right to
hold public office as ‘valuable, fundamental and one that is subject to First Amendment
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overruled in Edelstein, but not on this particular ground. (Edelstein, supra, 29 Cal.4th at
p. 183.) Moreover, the earlier cases on which Caanan itself relied have never been
overruled. (Johnson v. Hamilton (1975) 15 Cal.3d 461, 468 [“the right to hold public
office [is] valuable, fundamental and . . . subject to First Amendment protection . . . .”];
Zeilenga v. Nelson (1971) 4 Cal.3d 716, 723 [“the right to run for public office is as
More recently, in Eu, the Supreme Court said, “Two important rights are affected
by [term limits], namely, the incumbent’s right to run for public office, and the voters’
right to reelect the incumbent to that office.” (Eu, supra, 54 Cal.3d at p. 517, italics
added.) Thus, it analyzed the impact on candidates (id. at pp. 517-518), and it weighed
that impact, along with the impact on voters, against the state’s interest in the term limits
Federal cases are not to the contrary. According to the United States Supreme
(Lubin v. Panish (1974) 415 U.S. 709, 716; see also Moore v. Martin (8th Cir. 2017) 854
F.3d 1021, 1025 [“Ballot access restrictions implicate . . . the rights of potential
candidates for public office . . . .”], cert. den. ___ U.S. ___ [138 S.Ct. 321]; Phillips v.
City of Dallas (5th Cir. 2015) 781 F.3d 772, 778-779 [“This court has been unequivocal
Union High School Dist. (9th Cir. 1991) 930 F.2d 1390, 1397 [“the individual’s right to
seek public office is inextricably intertwined with the public’s fundamental right to
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vote”]; Branch v. FCC (D.C. Cir. 1987) 824 F.2d 37, 47 [the existence of a “right to seek
political office . . . is undeniable . . . .”], cert. den. (1988) 485 U.S. 959.)
Admittedly, the United States Supreme Court “has not . . . attached such
Carter (1972) 405 U.S. 134, 142-143; see also Clements v. Fashing (1982) 457 U.S. 957,
963 [“Far from recognizing candidacy as a ‘fundamental right,’ we have held that the
existence of barriers to a candidate’s access to the ballot ‘does not of itself compel close
However, this simply means that strict scrutiny is not required. If it were, few
provisions for “the selection and eligibility of candidates” (Burdick, supra, 504 U.S. at
p. 433) would escape challenge. “[T]o say that the right to candidacy is not fundamental
is not to say that a rational basis analysis applies.” (Brazil-Breashears v. Bilandic (7th
Cir. 1995) 53 F.3d 789, 792, cert. den 516 U.S. 869.) Rather — just like the voter’s right
to vote — the candidate’s right to run for office is subject to the Anderson-Burdick test.
(See, e.g., Libertarian Party of Arkansas v. Thurston (8th Cir. 2020) 962 F.3d 390, 398.) 5
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Eu concluded that the term limits “do[] affect the rights of . . . candidates to a
degree . . . .” (Eu, supra, 54 Cal.3d at p. 519.) With respect to candidates, however, the
impact was “mitigate[d]” by three factors: “First, the affected incumbent is not barred
from seeking any other public office . . . . Second, the term limitations arise only after
the incumbent already has had the opportunity to serve a significant period in office . . . .”
(Eu, supra, 54 Cal.3d at p. 518.) Third, the term limits in most (though not all) instances
did not count terms served before they went into effect. (Ibid.)
With respect to candidates, a one-term limit is ipso facto more burdensome than
the two- and three-term limits in Eu. Nevertheless, the reasons stated in Eu for
concluding that the impact was “mitigate[d]” largely also apply here.
First, a termed-out incumbent is free to run for any other county (or state or
federal) office.
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Third, Measure K does not count unexpired terms, if they have less than two years
still to run. That is not so very different from the term limits in Eu, which did not count
unexpired terms at all (except that it did count them against “some incumbent Senators”).
(Eu, supra, 54 Cal.3d at p. 518.) The fact that in Eu, terms begun by some incumbent
Senators did count demonstrates that Eu did not view this factor as dispositive.
injury.
Eu acknowledged that the state has a legitimate interest in term limits: “‘The
universal authority is that restriction upon the succession of incumbents serves a rational
public policy and that, while restrictions may deny qualified men an opportunity to serve,
as a general rule the over-all health of the body politic is enhanced by limitations on
continuous tenure. [Citations and fn. omitted].’” (Eu, supra, 54 Cal.3d at p. 520.) It
indicated that this interest was sufficiently compelling for the term limits there to survive
Bates agreed that the state has an interest in term limits: “Long-term entrenched
legislators may obtain excessive power which, in turn, may discourage other qualified
candidates from running for office or may provide the incumbent with an unfair
The trial court reasoned that “the desire to ensure a candidate seeks to serve the
believes is serving the interest of the voters at least for one or two additional terms of
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office. And a reasonable remedy exists if the incumbent seeking re-election is not
performing competently: the electorate vote for the other candidate.” These arguments,
essentially, they are arguments against having any term limits at all. As we know from
Eu, however, term limits imposed by initiative are presumptively valid. The trial court
was not entitled to second-guess the voters’ position on these policy issues.
The Board argues that “Renner raises a purported government interest by merely
citing the language of Eu and provides no evidence that this interest is relevant to San
Bernardino County.” Eu held, however, that such evidence is not required. (Eu, supra,
54 Cal.3d at p. 523.) “[W]e [do not] require elaborate, empirical verification of the
solution is term limits. As Eu said, “Realistically, only a lifetime ban could protect
The Board argues that the preexisting three-term limit was adequate and “a far less
drastic alternative” to a one-term limit. The voters, however, were presented with the
choice between Measure J, which would have kept the three-term limit, and Measure K’s
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The ballot arguments in favor of Measure K said, among other things: “Voting
YES for term limits and reduced salaries will finally attract representatives interested in
public service and committed to following the will of the people.” “Obligated to
financial backers for reelection, the Board of Supervisors has chosen to ignore voters and
their rights.” “A single four-year term will help shut out . . . outside interests and focus
our leaders on doing what’s best for us all.” “Measure K will ensure our elected officials
are inspired by service to San Bernardino County residents, not an oversized paycheck or
It was important to the electorate, then, to ensure that supervisors could not be
could never accomplish this goal. A one-term limit was the only alternative.
D. Conclusion.
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V
The trial court also ruled that the compensation limit was valid and constitutional.
In its cross-appeal, the Board contends that this was error, for three reasons.
A. Exclusive Delegation.
initiative, because state law delegates the power to set supervisors’ compensation
The trial court rejected this contention; it found “no clear indication that the
Legislature intended the governing body to exclusively hold the right to set their salary
within the charter and exclude the use of the initiative power to amend the charter
California has two kinds of counties: charter counties and general law counties.
(Cal. Const., art. XI, § 3, subd. (a); Roe v. County of Lake (N.D. Cal. 2000) 107
F.Supp.2d 1146, 1148.) San Bernardino is a charter county. (S.B. County Charter; Stats.
Article XI, section 3, subdivision (a) (section 3(a)) of the Constitution states,
“County charters . . . shall supersede . . . all laws inconsistent therewith. The provisions
of a charter are the law of the State and have the force and effect of legislative
enactments.” (Cal. Const., art. XI, § 3, subd. (a).) Thus, section 3(a) grants a charter
29
county “‘home rule,’ i.e., the authority of the people to create and operate their own local
government and define the powers of that government, within the limits set out by the
Constitution. [Citation.]” (Dibb v. County of San Diego (1994) 8 Cal.4th 1200, 1206.) 8
Despite the seeming breadth of section 3(a), a county charter supersedes state law
only when the county is legislating in its proper sphere. Hence, “charter provisions
cannot control in matters of statewide concern where the state has occupied the field.”
(Wilson v. Beville (1957) 47 Cal.2d 852, 859; accord, American Financial Services Assn.
Article XI, section 1, subdivision (b) of the California Constitution (section 1(b))
provides, “[E]ach governing body [of a county] shall prescribe by ordinance the
Article XI, section 4, subdivision (b) says that a county charter must provide for “[t]he
8 Charter cities also have home rule. (Cal. Const., art. XI, § 5, subd. (a).)
“But the ‘version of “home rule” afforded to a charter city is substantially more
expansive’ than that granted to charter counties. [Citation.] While charter cities are
granted broad authority over ‘municipal affairs,’ ‘[t]here is no corresponding grant of
authority and autonomy over the “county affairs” of charter counties. [Citations.]’
[Citation.]” (People v. Minor (2002) 96 Cal.App.4th 29, 40.)
Subject to that caveat, case law dealing with charter cities also applies to charter
counties. (See, e.g., Marquez v. City of Long Beach (2019) 32 Cal.App.5th 552, 562, fn.
5 [“The cases addressing the home rule doctrine have applied the same analysis to the
authority of charter counties . . . and charter cities . . . to set the compensation for their
employees.”].)
30
compensation . . . of members of the governing body.” (Cal. Const., art. XI, § 4, subd.
In other words, in a general law county, the “governing body” must set its
provide the method of setting the compensation of members of the governing body; the
governing body has no power to set the compensation of its members, unless the county
charter so provides. (See Brown v. Francisco (1954) 123 Cal.App.2d 413, 417 [county
charter may fix supervisors’ compensation or may allow supervisors to do so].) Last but
not least, the voters have the right to amend a county charter by initiative. (Cal. Const.,
art. XI, § 3, subds. (a), (b).) It follows that the voters in a charter county may set
citizen initiatives may initially set supervisor compensation in charter counties.” “Where
courts defer to the legislature . . . .” As just discussed, however, the state Constitution is
Jahr v. Casebeer (1999) 70 Cal.App.4th 1250 (Jahr) held that, under section 1(b),
Board of Supervisors (1976) 57 Cal.App.3d 341 (Meldrim) is in accord. (Id. at pp. 343-
344.) Jahr, however, involved Shasta County (Jahr, supra, at pp. 1252-1253), a general
law county. (California State Association of Counties, County Structure & Powers,
31
available at <https://www.counties.org/general-information/county-structure-0> [as of
May 3, 2023].) And Meldrim involved Contra Costa County, which, as the court there
Meldrim even acknowledged that “the State Constitution . . . gives charter counties the
right to set the salaries of their supervisors. [Citation.]” (Id. at pp. 343-344.)
Admittedly, Jahr stated flatly that “the process through which supervisor salaries
p. 1259.) Because Jahr involved a general law county, however, the court was not called
upon to decide any issue regarding a charter county. If this statement in Jahr applied to a
charter county, it would conflict with section 4(b), which leaves it up to a charter county
to decide how to set supervisors’ compensation, as well as with the broad home rule that
section 3(a) confers on charter counties. It is perfectly consistent to say that supervisor
When the trial court ruled, section 25300 provided, “The board of supervisors
shall prescribe the compensation of all county officers . . . .” (Former § 25300, Stats.
1974, ch. 661, § 2, p. 1523.) As the trial court recognized, however, “officers of a
32
county” is defined as including the members of a board of supervisors. (Gov. Code,
prescribe the compensation of all county officers, including the board of supervisors
. . . .” (Italics added.)
The Board argues that this constitutes an “exclusive delegation” of the power to
co-extensive with the legislative power of the local governing body. [Citation.]” (DeVita
v. County of Napa (1995) 9 Cal.4th 763, 775.) However, “[t]he presumption in favor of
the right of initiative is rebuttable upon a definite indication that the Legislature, as part
of the exercise of its power to preempt all local legislation in matters of statewide
The Board’s argument assumes, however, that section 25300 applies to charter
First, section 4(b) says that a county charter must provide for “[t]he compensation
salaries is a statewide matter, and hence even if the county charter does not supersede
Second, section 25300 does not actually purport to apply to a charter county
(except when the charter allows the board of supervisors to set the compensation of its
33
own members). The second sentence of section 25300 adds, “Except as otherwise
of article XI does require otherwise; in a charter county, it requires that the county charter
Admittedly, the first sentence of section 25300 — “The board of supervisors shall
prescribe the compensation of . . . the board of supervisors” — does not have any similar
exclusion. Nevertheless, it is “our duty to read the elements of the statute together,
harmonizing and giving effect to them all. [Citations.]” (Hampton v. County of San
Diego (2015) 62 Cal.4th 340, 351.) Both the first and second sentences must be read as
qualified by the second. Even assuming the first sentence gives a charter county board of
supervisors the power to set their own compensation, the second takes it away by
should, if reasonably possible, construe a statute ‘in a manner that avoids any doubt about
Third, the legislative history of AB 428 demonstrates that the Legislature did not
intend section 25300 to apply to a charter county. Admittedly, the author of the bill
stated: ““[I]t is the Legislature’s duty to ensure that our local governments, whether
established through general law or charter, are equipped with the tools needed to
properly administer the heavy burdens we place upon them. . . . We must clarify existing
34
law to allow for County Supervisors to obtain reasonable compensation . . . .” (Assem.
Com. on Elections, Analysis of Assem. Bill No. 428, supra, at p. 2, italics added.)
Other voices, however, soon chimed in. A Senate committee bill analysis stated:
“Consistent with existing law, AB 428 reiterates that members of the board of supervisors
are county officers for which the board must set compensation. However, because the
California Constitution says that charters must provide for the compensation of the board,
charters that set compensation trump state law. Accordingly, while AB 428 may clarify
matters for general law counties, it is unclear that it materially changes how
compensation is set in charter counties that have charter provisions setting a specific
compensation level for members of the board.” (Sen. Com. on Gov. & Fin., Analysis of
Assem. Bill No. 428 (2021-2022 Reg. Sess.), as amended Mar. 18, 2021, p. 4, italics
added.)
Charter Counties. AB 428 would clarify, in Government Code Section 25300, that the
‘county officers’ for which the board of supervisors sets compensation includes the board
itself. This amendment is consistent, as to general law counties, with provisions of the
California Constitution requiring each county governing body to set the compensation of
its members. However, this clarification may not apply to all charter counties, because
governing bodies setting their own compensation, that a county charter must provide for
the compensation of the board, and some county charters do not give the board discretion
35
to set its own compensation. Accordingly, while AB 428 may clarify matters for general
law counties, it is unclear that it materially changes how compensation is set in charter
counties that have charter provisions setting a specific compensation level for members
of the board.” (Sen. Com. on Elections and Const. Amends., Analysis of Assem. Bill No.
428 (2021-2022 Reg. Sess.), as amended Mar. 18, 2021, p. 6, italics added.)
The Board notes that the Howard Jarvis Taxpayers Association (Jarvis
Association) opposed AB 428. The Jarvis Association argued: “‘AB 428 seeks to undo
the overwhelming approval of Measure K in San Bernardino County that amended the
County Charter to impose a term limit of one term and reduced the total compensation for
each member of the Board of Supervisors to $5,000 per month.” (Assem. Com. on
Elections, Analysis of Assem. Bill No. 428, supra, at p. 4.) The Board concludes that
“the Legislature contemplated that the passage of AB 428 would ‘undo’ Measure K.”
Elections, Analysis of Assem. Bill No. 428, supra, at p. 1), the author of AB 428
“indicated that the intent of this bill is not to overturn Measure K.” (Id. at p. 3, italics
added.)
The Senate Committee on Governance and Finance observed that the effect of
AB 428 on Measure K was not clear; it expressed concern about “thwarting the will of
the voters.” (Sen. Com. on Gov. & Fin., Analysis of Assem. Bill No. 428, supra, at p. 4.)
expressly that it “shall not affect any term limits that were legally in effect prior to
36
January 1, 2022 . . . .” (Sen. Com. on Elections and Const. Amends., Analysis of Assem.
Bill No. 428, supra, at pp. 5-6.) There was no need to amend its compensation limit,
because, as already discussed, the Legislature knew it most likely did not apply to a
charter county.
Plainly, then, the Legislature did not contemplate that AB 428 would undo
Measure K. To the contrary, it agreed with the Jarvis Association that the unamended
version threatened Measure K, and thus it amended AB 428 so as to let Measure K stand.
In sum, then, the author of AB 428 may have intended it to apply to charter
counties. The Legislature as a whole, however, was made aware that section 25300 —
both before and after AB 428 — most likely did not and could not apply to charter
counties.
Second, the Board contends that the compensation limit violates federal and state
The trial court rejected this contention based on lack of evidence. It ruled: “Even
though it is implied the Board may be paid less than minimum wage after deduction of all
agree.
Measure K’s compensation limit is $5,000 a month. The Board points out that the
minimum wage of $15 an hour for 40 hours a week works out to $2,600 a month. It adds,
“[F]ederal law requires that the County match a Medicare tax at 1.45 percent of the
37
supervisor’s salary, and state and local pension laws require that the County match each
benefits alone require a minimum of $493.74. When adding in other legally mandated
insurance, among others, . . . Measure K’s terms immediately risk requiring that the
“On a facial challenge, we will not invalidate a statute unless it ‘pose[s] a present total
constitutional problems may possibly arise as to the particular application of the statute.’
[Citation.]” (California School Boards Assn. v. State of California (2019) 8 Cal.5th 713,
723-724.)
The Board’s evidence fails to establish that Measure K will necessarily violate
superseding federal and state law. Indeed, as the Board itself says, “it is presently
hypothesizes a future increase of the minimum wage to $20 an hour, and even then it says
38
only that “a supervisor’s compensation would be a minimum of $4,125 — a number
which does not include the numerous other required benefit payments under state and
In a subsidiary contention, the Board argues that, if the county could comply with
minimum wage laws by having supervisors work part-time, that would impair essential
Third, the Board contends that the compensation limit improperly overturns San
The Board did not raise this argument below. Nevertheless, “[g]enerally, on
the trial court’s reasons; thus, a respondent may assert a new theory to establish that an
order was correct on that theory ‘unless doing so would unfairly prejudice appellant by
depriving him or her of the opportunity to litigate an issue of fact.’ [Citation.]” (Bailon
v. Superior Court (2002) 98 Cal.App.4th 1331, 1339.) The Board’s argument is purely
legal.
county officials. It requires that supervisors be provided with certain benefits, including
retirement benefits, medical, dental, and vision insurance, life insurance, long-term
39
disability insurance, a cell phone allowance, health club membership, an annual physical
The Board asserts that “Measure K renders it impossible for supervisors to be paid
the amounts [section 13.0614] requires.” Once again, however (see part IV.B, ante), this
Measure K is part of the county charter; section 13.0614 is a mere county ordinance.
Accordingly, to the extent that they conflict, section 13.0614 is invalid. (See City and
The Board implicitly recognizes this principle. It therefore argues that the voters
cannot invalidate an ordinance by initiative rather than by referendum. It cites article XI,
governing body shall prescribe by ordinance the compensation of its members, but the
however (see part III, ante), section 3(b) and section 4(b), taken together, give the voters
Supervisors are also entitled to make voluntary contributions that can be used for
certain purposes (medical, 401(k) plans, 457 plans, dependent care) without being subject
to income tax. (§ 13.0614, subds. (c)(7), (c)(8), (c)(12).) As these come out of
supervisors’ salaries, they, too, are not compensation within the meaning of Measure K.
40
in a charter county the power to amend a charter by initiative, so no referendum is
needed.
VI
The Board contends that Measure K, by combining the one-term limit and the
The trial court rejected this contention. It ruled that both provisions were
“reasonably germane to ensuring the member of the Board is about public service versus
Under the California Constitution, “[a]n initiative measure embracing more than
one subject may not be submitted to the electors or have any effect.” (Cal. Const., art. II,
§ 8, subd. (d).) “This rule applies to local as well as statewide initiatives. [Citation.]”
(Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246,
1255.)
the face of a single-subject challenge, emphasizing that the initiative process occupies an
important and favored status in the California constitutional scheme and that the single-
that would preclude the use of the initiative process to accomplish comprehensive, broad-
41
“‘[T]he single-subject provision does not require that each of the provisions of a
Accordingly, [the Supreme Court has] upheld initiative measures ‘“which fairly disclose
that ‘“‘[a]n initiative measure does not violate the single-subject requirement if, despite
its varied collateral effects, all of its parts are “reasonably germane” to each other,’ and
not to unduly restrict . . . the people’s right to package provisions in a single bill or
The Board does not attack the trial court’s ruling that both provisions of
Measure K are reasonably germane to ensuring that Board members are devoted to public
concerns more than one subject. It provides no authority for this argument. The test
under the single-subject rule (all provisions must be “reasonably germane” to each other)
is very different from the test for severability (“‘[t]he invalid provision must be
42
We need not decide this issue. The trial court ruled that Measure K is not
severable. The Board agrees. Because we are upholding both the one-term term limit
and the compensation limit, there is no need for us to decide whether Measure K is
severable. And because the Board is not contending that Measure K is severable, we
need not decide whether, if it were severable, it would violate the single-subject rule.
VII
Renner contends that the trial court erred by ruling that Measure K did not apply
to the newly elected supervisors. This depends, in part, on when the new supervisors
took office and on when Measure K went into effect. Renner and the Board disagree on
both points.
Under both the old county charter and Measure J, the new supervisors’ terms were
Accordingly, on December 7, 2020, the new supervisors were sworn in. The trial court
ruled that, pursuant to the county charter, the new supervisors’ terms did, in fact, begin
on December 7, 2020.
provides: “Terms of elective offices provided for by this Constitution, other than
11 Measure J also provided that, after 2020, supervisors’ terms would begin on
the first Monday after the first day of January following their election.
43
Members of the Legislature, commence on the Monday after January 1 following
election.” Our Supreme Court, however, has held that this governs only state elective
offices, not local elective offices. (In re Stuart (1879) 53 Cal. 745, 748 (Stuart); accord,
Stuart noted that “State officers, such as the Governor and the other officers who
constitute the Executive Department of the State Government . . . are officers whose
election is absolutely provided for by the Constitution itself.” (Stuart, supra, 53 Cal. at
p. 748.) It then relied on former article XI, section 5, of the California Constitution,
which allowed the Legislature to “fix the[] terms of office” of “county . . . and municipal
Renner argues, however, that Stuart is no longer good law. She claims that, when
Stuart was decided, the only officers whose election was “provided for by th[e]
Constitution” were state officers; since then, however, the Constitution has been amended
shall be elected by the qualified electors at the time and places of voting for members of
the Assembly, and shall hold his office four years from and after the first Monday after
By contrast, article XI, section 5 of the Constitution, on which Stuart relied, said:
“The Legislature . . . shall provide for the election or appointment, in the several
counties, of Boards of Supervisors . . . and shall . . . fix their terms of office.” (Italics
44
added.) Thus, Stuart drew a distinction between state officers like the governor, “whose
election is absolutely provided for by the Constitution itself,” and county supervisors,
whose election and terms were to be provided for by the Legislature. (Stuart, supra, 53
Cal. at p. 748.)
Similarly, the Constitution now states: “The Governor shall be elected every
fourth year at the same time and places as members of the Assembly and hold office from
the Monday after January 1 . . . .” (Cal. Const., art. V, § 2, italics added.) It also states:
“The Legislature shall provide for . . . an elected governing body in each county.” (Cal.
Const., art XI, § 1, subd. (b), italics added.) Moreover, it provides that, in a charter
county, the charter is to provide for “[t]he . . . terms . . . of members of the governing
body.” (Cal. Const., art XI, § 4, subd. (b).) Thus, Stuart’s reasoning is still sound — at
least as to a charter county, the Legislature is to provide for the election of supervisors,
and the county charter is to provide for their terms. Article II, section 20 still does not
apply.
We also note that, in several charter counties, supervisors do not take office on the
Monday after January 1. Los Angeles County provides by charter for supervisors’ terms
to begin on the first Monday in December. (L.A. County Charter, art. II, § 6.)
Sacramento and Santa Clara Counties provide for them to begin on the first Monday in
January. (Sac. County Charter, art. IV, § 9; Santa Clara County Charter, art. II, § 202.)
Likewise, San Francisco provides for them to begin on January 8. (S.F. Charter,
45
§ 2.101.) This reflects a general understanding that a charter county can choose its own
date.
Thus, we agree with the trial court that the new supervisors took office on
December 7, 2020.
Measure K itself provided: “To the extent permitted by law, the provisions of this
California law.” The introductory clause — “[t]o the extent provided by law” — seems
to indicate that it was not intended to override any statutory and constitutional provisions
that may apply. We need not decide this, however, because Renner does not argue that
The parties have cited multiple statutes that they claim govern when a charter
First, Renner cites Article II, section 10, subdivision (a) of the California
cast thereon takes effect on the fifth day after the Secretary of State files the statement of
Case law establishes that Article II, section 10, subdivision (a) of the Constitution
applies only to statewide initiatives; local initiatives are governed by a parallel statutory
scheme, which includes Elections Code section 9122. (Howard Jarvis Taxpayers
Association v. City and County of San Francisco (2021) 60 Cal.App.5th 227, 239; City
46
and County of San Francisco v. All Persons Interested in Matter of Proposition C (2020)
Government Code section 23723 provides: “[A] proposed [charter 12] amendment
. . . shall not take effect until accepted and filed by the Secretary of State . . . .” (Gov.
Code, § 23723; see also id., § 23724.) The trial court ruled that this was the controlling
provision. 13
a county charter by initiative petition . . . shall be subject to this article.” Elections Code
section 9122 — part of the same article — then provides: “If a majority of the voters
voting on a proposed ordinance vote in its favor, the ordinance shall become a valid and
binding ordinance of the county. The ordinance shall be considered as adopted upon the
date the vote is declared by the board of supervisors, and shall go into effect 10 days after
that date.”
There is an inescapable conflict between Elections Code sections 9102 and 9122,
on one hand, and Government Code section 23723, on the other. They are
“‘irreconcilable, clearly repugnant, and so inconsistent that the two cannot have
12 While Government Code section 23723 does not use the word “charter,” it
is part of a statutory scheme dealing exclusively with the proposal, revision, amendment,
and repeal of county charters. (Gov. Code, §§ 23700-23732.)
13 The trial court mistakenly cited Government Code sections 23712 and
23713. Those sections apply to a charter proposal or revision. However, Government
Code sections 23723 and 23724, which apply to a charter amendment (as here) or repeal,
are otherwise essentially identical to Government Code sections 23712 and 23713. Thus,
the error was plainly harmless.
47
concurrent operation.’ [Citation.]” (See Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th
The Board plumps for Government Code section 23723. It cites Board of
Supervisors v. McMahon (1990) 219 Cal.App.3d 286 (McMahon), which remarked that
the county charter amendment in that case “became effective . . . when the Secretary of
State accepted and filed it. (See Gov. Code § 23723.)” (Id. at p. 292.) McMahon,
however, was decided in March 1990; as we will discuss in (perhaps excruciating) detail
momentarily, the statutory predecessors of Elections Code sections 9102 and 9122 did
not become effective until September 1990. In any event, there was no issue in
McMahon as to the precise date on which the charter amendment there became effective.
“It is axiomatic that cases are not authority for propositions that are not considered.
[Citation.]” (California Building Industry Assn. v. State Water Resources Control Bd.
ones [citation], and more specific provisions take precedence over more general ones
[citation].’ [Citation.] But when these two rules are in conflict, the rule that specific
provisions take precedence over more general ones trumps the rule that later-enacted
statutes have precedence. [Citations.]” (State Dept. of Public Health v. Superior Court
We cannot say that either set of statutes is more specific than the other. Arguably,
Elections Code section 9122, standing alone, is more general than Government Code
48
section 23723, because it applies to initiative county ordinances as well as initiative
county charter amendments. However, Elections Code section 9102 very specifically
makes Elections Code section 9122 applicable to initiative county charter amendments.
Government Code section 23723 was enacted in 1969 (Stats. 1969, ch. 1264, § 1,
p. 2470) and most recently amended in 1975. (Stats. 1975, ch. 238, § 10, p. 627.)
Elections Code sections 9102 and 9122 were both enacted in 1994. (Stats. 1994,
Elections Code section 9122 replaced Elections Code former section 3716 (Stats.
1994, ch. 920, § 2, p. 5168), enacted in 1976. (Stats. 1976, ch. 248, § 3, p. 503.) That, in
turn, replaced Elections Code former section 3717, enacted in 1961. (Stats. 1961, ch. 23,
§ 3717, p. 632.) That replaced Elections Code former section 1617, enacted in 1939.
(Stats. 1939, ch. 26, p. 632.) And that replaced former Political Code section 4058,
The most recent three of these were all identically worded; the 1911 original had
more verbiage, but it was identical in all relevant respects. Thus, like current Elections
Code section 9122, all of its statutory predecessors were worded in terms of an initiative
county “ordinance.” Standing alone, they did not purport to apply to an initiative
Meanwhile, Elections Code section 9102 replaced Elections Code former section
3701.5, enacted in 1990 (Stats. 1990, ch. 1161, § 12, p. 4864) and effective on September
49
21, 1990. (Stats. 1990, ch. 1161, § 32, pp. 4857, 4870.) Again, the wording of Elections
Code former section 3701.5 was identical to current Elections Code section 9102.
Crucially, before 1990, there was no statute (like Elections Code section 9102)
making an initiative county charter amendment subject to Elections Code section 9122 or
It follows that Elections Code sections 9102 and 9122, taken together, must be
regarded as enacted in 1990. (Gov. Code, § 9605, subd. (a).) Thus, they superseded
Government Code section 23723. And thus, under Elections Code sections 9102 and
9122, Measure K went into effect 10 days after the vote was declared by the Board —
Supervisors?
As we have just held, the new supervisors took office on December 7, 2020 (see
part VI.A, ante), and Measure K went into effect on December 18, 2020 (see part VI.B,
ante). The Board contends that, if Measure K applies to the new supervisors, it is
limit the number of terms a member of the board of supervisors may serve on the board
of supervisors shall apply prospectively only.” This language was not added by AB 428;
50
Even aside from Government Code section 25000, “statutes do not operate
retrospectively unless the Legislature plainly indicates otherwise. [Citation.]” (In re S.B.
mechanical task’ [citation] and ‘comes at the end of a process of judgment concerning the
nature and extent of the change in the law and the degree of connection between the
operation of the new rule and a relevant past event’ [citation]. In exercising this
consequences to, or increases a party’s liability for, an event, transaction, or conduct that
was completed before the law’s effective date. [Citations.] Thus, the critical question for
determining retroactivity usually is whether the last act or event necessary to trigger
application of the statute occurred before or after the statute’s effective date. [Citations.]
A law is not retroactive ‘merely because some of the facts or conditions upon which its
application depends came into existence prior to its enactment.’ [Citation.]” (People v.
14 For this reason, we need not decide whether, under the home rule doctrine
(see part IV.A.1, ante), Measure K overrides Government Code section 25000.
51
Armstrong v. County of San Mateo (1983) 146 Cal.App.3d 597 (Armstrong) dealt
with article XIIIA, section 2, subdivision (b) of the California Constitution, which went
into effect on July 1, 1978. (Id. at p. 604.) It allowed tax authorities to assess real
property for the 1978-79 tax year at its assessed value in the 1975-76 tax year, plus an
The appellate court held that this was not retroactive. (Armstrong, supra, 146
Cal.App.3d at pp. 613-614.) “It is well settled that ‘[a] statute does not operate
retroactively merely because some of the facts or conditions upon which its application
depends came into existence before the enactment.’ [Citation.] Application of the
inflation factor prior to the effective date of article XIIIA does not give the 1975-76 full
cash value assessment or the pre-1978 adjustments thereof ‘an effect different from that
which they had under previously existing law,’ such as, for example, by retroactively
increasing taxes due in 1975-76 or any other tax year prior to the effective date of the
article. Rather it merely utilizes facts existing prior to enactment of the article to
determine tax rates to be applied prospectively from the effective date.” (Ibid., fn.
omitted.)
In Sheyko v. Saenz (2003) 112 Cal.App.4th 675 (Sheyko), the Legislature passed a
statute requiring aid applicants and recipients to be fingerprinted in accordance with the
(Id. at pp. 684-686.) The trial court ruled that, as applied to persons who were applicants
52
but not recipients when the statute went into effect, the statute was impermissibly
The appellate court held that the statute was not retroactive at all. (Sheyko, supra,
when it gives a different and potentially unfair legal effect to actions taken in reliance on
requirement [citation] and recipients lose their entitlement as soon as they lose their
eligibility. [Citation.] It would be no different than the Legislature changing some other
eligibility condition, such as maximum income: That new cutoff would apply to all
expectation that eligibility conditions will not change. Nobody loses past benefits for
reevaluated to see if the present conditions of eligibility are met. This means the SFIS
regulations do not ‘materially alter the legal significance’ of applying for benefits, nor
give ‘a different and potentially unfair legal effect to actions taken in reliance on the
Here, once the new supervisors were elected, they did have a vested right to
remain in office for one term. However, they had no vested right to run for a second
term. They could hardly have had a reasonable expectation that they could run for a
second term, as Measure K had already been proposed and was on the same ballot as they
53
were. In any event, the Board does not point to any way in which they relied on any such
expectation.
Much as in Sheyko, the change in the law here affects the new supervisors’
eligibility for future office. Thus, they could always lose their eligibility due to a
statutory change. That is true even if, as here, “‘some of the facts or conditions upon
which its application depends came into existence prior to its enactment.’ [Citation.]”
merely looks at facts existing prior to its enactment to determine eligibility, to be applied
prospectively from the provision’s effective date. The one-term limit is analogous to a
minimum age requirement, which looks at an event in the past — the person’s birth — to
determine his or her present eligibility to drink, smoke, run for office, etc.
Measure K cannot and does not kick out of office those supervisors who were
already serving a second or third term. That would indeed be a prohibited retroactive
application. However, it will bar them — just as it bars the new supervisors — from
The Board contends that applying Measure K to the new supervisors would violate
AB 428.
54
Government Code section 25000, subdivision (b), as amended by AB 428,
provides:
limit to no fewer than two terms . . . a member of the board of supervisors may serve on
“(2) The changes made to this subdivision by [AB 428] shall not affect any term
limits that were legally in effect prior to January 1, 2022, in any county.”
As we held in part VI.B, ante, Measure K went into effect on December 18, 2020.
The Board argues that the Legislature intended AB 428 to overturn Measure K.
“It is well established, however, that legislative intent should not be resorted to where a
statute is clear on its face.” (Greb v. Diamond Internat. Corp. (2013) 56 Cal.4th 243,
256.) In any event, as we discussed in part IV.A.2, ante, the Legislature did not intend
AB 428 to abrogate Measure K; indeed, it amended AB 428 and added the January 1,
55
E. Does Measure K Violate Provisions Protecting Supervisors’
Compensation?
The Board relies on Government Code section 1235, 16 which provides: “The
salary of any elected public office shall not be reduced during an election year after any
candidate for that particular office has filed the requisite forms declaring his or her
candidacy for that particular office.” Renner does not contend that, under the home rule
doctrine (see part IV.A.1, ante), Measure K trumps Government Code section 1235. We
Again, Measure K went into effect on December 18, 2020. (See part VI.B, ante.)
That was “during an election year.” While the record does not show exactly when the
new supervisors filed their candidacy forms, it had to be sometime before they were
elected, on November 3, 2020. It follows that the compensation limit cannot apply to the
new supervisors.
The Board also asserts that its members have constitutional protection against the
reduction of their compensation during their terms. Somewhat unhelpfully, Renner does
16 There are two section 1235s in the Government Code. We refer to the one
enacted in 1980 (Stats. 1980, ch. 737, § 1), not the one enacted in 1994 (Stats. 1994,
ch. 991, § 2).
56
Because we have just held that, under Government Code section 1235, the
compensation provision of Measure K cannot apply to the new supervisors (see part
Corrections (2001) 25 Cal.4th 117, 129 [“we do not address constitutional questions
unless necessary.”].)
VIII
Renner contends that, whether Measure K was valid or not, the trial court erred by
enjoining City Clerk Monell from certifying, authenticating, and recording it.
chairperson and clerk of the governing body[,] . . . attested by the county elections
official, . . . recorded in the office of the recorder of the county[,] . . . filed in the office of
the county elections official,” and “file[d] . . . with the Secretary of State . . . .” (Gov.
Renner does not cite any portion of the record showing that the trial court ever
actually issued an injunction against this. She has not included the TRO itself in the
record, and, as noted in part III, ante, the trial court never issued a permanent injunction.
Thus, Renner has forfeited this contention. (See Cal. Rules of Court, rule 8.204(a)(1)(C);
Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1021.)
Separately and alternatively, any such error is harmless and/or moot. Measure K
went into effect on December 18, 2020, regardless of when or even whether it was
57
certified, authenticated, recorded, or filed. (See part VI.B, ante.) Renner has not pointed
out any other way in which Monell’s failure to perform her statutory duties was
prejudicial.
In any event, when we reverse a judgment, we have the power to “direct that the
parties be returned so far as possible to the positions they occupied before the
enforcement of . . . the judgment or order. In doing so, the reviewing court may order
restitution on reasonable terms and conditions of all property and rights lost by the
erroneous judgment or order, so far as such restitution is consistent with rights of third
parties . . . .” (Code Civ. Proc., § 908.) Hence, we will direct the trial court to allow
county officials to perform their duties, and also to order that their performance be
deemed to relate back, nunc pro tunc, to the dates when they should have performed
them.
Measure J and Measure K were passed at the same time. It stands to reason that
Measure K would have been certified, authenticated, recorded, and filed at the same time
as Measure J (unless the Board deliberately slow-walked Measure K). Therefore, we will
direct the trial court, on remand, to ascertain when Measure J was certified, authenticated,
recorded, and filed and to set forth these dates in its nunc pro tunc order.
58
IX
DISPOSITION
The trial court’s order granting the petition is reversed. On remand, the trial court
must ascertain the dates on which Measure J was certified, authenticated, recorded, and
filed. It must then enter a new order, granting a writ and/or an injunction prohibiting the
application of the compensation limit to the new supervisors, but otherwise denying the
petition and entering judgment against the Board on the complaint. The order must
provide that Monell and all other county officials may carry out their duties to certify,
authenticate, record, and file Measure K. It must also provide that Measure K is deemed
to have been certified, authenticated, recorded, and filed on the same dates as Measure J,
I concur:
MILLER
J.
59
[San Bernardino County Board of Supervisors v. Monell; Renner, E077772]
Nearly every issue in this appeal is moot, so nearly everything in the majority
opinion is advisory. Because I would not issue an advisory opinion on moot issues, I
respectfully dissent.
2020, imposed certain term limits and compensation limits for members of the board of
supervisors. After passage, Measure K was challenged in the superior court, which
Measure D, approved by the County’s voters in 2022, imposed new term limits
and compensation limits for members of the board of supervisors. Measure D supersedes
Measure K in its entirety. Measure D has been challenged in court, but to date no part of
After Measure D passed, the County requested that we stay this appeal pending
resolution of the Measure D litigation. We invited and received supplemental briefs from
the parties on the stay request and whether the appeal is moot. The County’s request for
a stay was denied (over my objection). But the County renewed the request at oral
appeal. The appeal is from an order invalidating Measure K. But no matter what we do,
1
Measure K cannot go back into effect unless and until Measure D is invalidated. The
The only issue that presently is not moot is whether Measure K’s compensation
limits apply from 2020 to 2022, between the passage of Measure K and the passage of
Measure D. But in the future, additional issues might cease to be moot if Measure D is
invalidated in whole or in part. We should accordingly stay this appeal until there is a
final judgment in the Measure D litigation. Only then will we have a final determination
of which issues concerning Measure K are not moot. At present, only one of them is.
I would vacate submission and stay the appeal pending final resolution of the