Filed 7/24/13 Pelfrey v. San Luis Obispo Cty. Bd. of Supers. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication o r ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

WILLIAM A. PELFREY,
Plaintiff and Appellant,

v.

SAN LUIS OBISPO COUNTY BOARD OF SUPERVISORS,
Defendant and Respondent. 2d Civil No. B241420 (Super. Ct. No. CV110628A)

(San Luis Obispo County)

Here we uphold the validity of an or dinance adopted by the San Luis Obispo County Board of Supervisors (the Board) redi stricting supervisorial districts following the
2010 census. William A. Pelfrey appeals from an order denying his petition for writ of
administrative mandate that would direct th e County of San Luis Ob ispo to rescind the ordinance on the ground that it does not equa lly divide the population between districts and unnecessarily divides the unincorporated commun ity of Templeton and the City of San Luis Obispo, thereby diluting the ru ral vote. We conclude the Board proceeded in the manner required by Elections Code s ection 21500 when it adopted Ordinance No. 3218, amending chapter 2.60 of the County C ode, and the deviation from equa lity of population was within
the limits of the discre tion given to the Board. 1 Accordingly, we affirm.

1 All statutory references are to the El ections Code unless otherwise stated.2. FACTUAL AND PROCEDUR AL BACKGROUND County of San Luis Obis po (County), like all Californi a counties, consists of five supervisorial districts. The Board must adjust the districts following each federal
decennial census “so that the dist ricts shall be as nearly equa l in population as may be.” (§ 21500.) The Board may al so consider secondary crit eria--“(a) topography, (b) geography, (c) cohesiveness, contiguity, inte grity, and compactness of territory, and (d) community of interests of the districts.” ( Ibid. )
The 2010 census establishe d that County’s populatio n had increased by about 10 percent to a total of 262,192, resulting in an 18 percent deviation between the least and most populous districts. The po pulation had increased mainly in District 1 in the north and District 4 in the south. To achieve popul ation equality, Districts 1 and 4 had to cede population. The Board considered a variety of redi stricting options, including one Pelfrey developed with help of Count y staff, “Option C.” After extensive public hearings and outreach, the Board rejected Optio n C, and adopted “Option B-2” as Ordinance No. 3218. Based on the new population figur e (262,192), the “ideal” 20 percent population for each of the five districts would be 52,438. Un der the ordinance (Option B-2),
District 1 exceeds that number by 1,218 with 20.46 percent of County’s population in its district. The population allocation is: Ordinance No. 3218 (Option B-2) District Population % of total population % variation from ideal District 1 53,656 20.46% 0.46 District 2 51,399 19.60% 0.40 District 3 52,404 19.99% 0.01 District 4 52,842 20.15% 0.15 District 5 51,907 19.80% 0.20 Option B-2 preserves all of the Temple ton Community Services District and Urban Reserve Line within District 1, but it places 15 percent of the Templeton Unified
School District in District 5. It also exte nds District 5 across the Cuesta Grade to include3. part of the City of San Luis Obispo, thereby dividing the City of San Luis Obispo among
three districts. During the public comment period, Pe lfrey and other Te mpleton residents urged the Board not to divide th e Templeton school district. They testified that Templeton is a community of interest that self-identifies with the school district boundaries. The
school district boundaries are identical to t hose of the Templeton Area Advisory Group
which advises the Board on issues of intere st to Templeton. Ma ny Templeton residents encouraged the Board to adopt Pelfrey’s Op tion C. Like Option B-2, Option C would divide the City of San Luis Ob ispo into three districts, but it would not divide Templeton’s
school district and it woul d have slightly better popul ation equality, as follows: Option C District Population % of total population % variance from ideal District 1 53,280 20.32% 0.32 District 2 52,209 19.91% 0.09 District 3 52,027 19.84 0.16 District 4 52,842 20.15 0.15 District 5 51,834 19.77 0.23 The Board ultimately rejected Option C, and adopted B-2, by a three-to-two
vote. Staff advised the Board that other school districts were divide d and had historically been divided, and that they ar e independent bodies with whic h the board “has little to do.” Supervisors observed that histor ical division of school distri cts in their districts had not created representation problems. Pelfrey’s Option C would have si milarly divided the
Shandon school district and the Shandon Comm unity Advisory Area. Residents of Paso Robles were opposed to Option C’ s expansion of the geographical area of District 5. Option C would have changed neighborhood division s within the City of San Luis Obispo. Pelfrey petitioned the trial court for a writ of mandate that would direct the Board to rescind the ordinance. He argued th at the Board had abused its discretion because it did not proceed in the manner prescribed by section 21500, better population equality was possible, and deviations from equality were not justified by secondary factors.4. The trial court denied Pelfrey’s pe tition, finding the Bo ard had not acted arbitrarily, capriciously, or en tirely without evidentiary suppo rt when it adopted Ordinance
No. 3218.
DISCUSSION Pelfrey contends that the Board did no t proceed as required by section 21500 because it did not seek to attain exact popul ation equality, the new districts are not “as nearly equal in population as may be,” a nd the deviation from e qual population are not justified by the secondary statutory criteria. Pelfrey has not demons trated that the Board abused its discretion or failed to proceed in the manner prescribed by section 21500. Pelfrey also contends for the first time on appe al that Ordinance No. 3218 violates the equal protection clause of the federa l Constitution by diluting the rural vote. He forfeits the claim
because he did not raise it in the trial court. Our review of actions undertaken by an agency in its legislative capacity is
limited to a determination whet her the agency’s actions were arbitrary, capricious, or entirely lacking in evidentiary support or whet her it failed to follow the procedure required by law. (Code Civ. Proc., § 1085; Strumsky v. San Diego County Employees Retirement
Assn. (1974) 11 Cal.3d 28, 35, fn. 2.) “Becaus e reapportionment is so essentially a legislative function, certain basic considerati ons relating to the fundamental doctrine of the separation of powers between the judicial an d the legislative branches of government regulate and limit courts in the exercise of thei r power to declare such enactments invalid.” ( Griswold v. County of San Diego (1973) 32 Cal.App.3d 56, 65-66.) “Among the limitations upon the court's power is the pres umption the enactment is valid and that the legislative body performed its duty and ascertai ned the existence of any facts upon which its right to act depended.” ( Id. at p. 66.) We “may not substitute [our] judgment for that of the legislative body merely becau se [we] doubt[s] the wisdom of the action taken” and we “must sustain the legislative enactment if there is any reasonable basis for it.” ( Ibid. [nearly equal supervisorial districts withstood an equa l protection challenge].) On the other hand, an agency's use of an erroneous legal standa rd constitutes a failure to proceed in a manner required by law and the interp retation and applicability of a statute is a question of law5. requiring our independent determination. ( East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist . (1989) 210 Cal.App.3d 155, 165.) Section 21500 requires each county boar d of supervisors to decennially adjust the boundaries of its five supervisorial districts “so that the districts sh all be as nearly equal in population as may be.” In doing so, “the board may give consideration to” secondary factors: “(a) topography, (b) geography, (c) cohesiveness, contiguity, integrity, and compactness of territory, and (d) community of interests of the districts.” ( Ibid. ) Deviations from equal distributi on may be justified by secondary considerations. ( Griffin v. Board of Supervisors (1964) 60 Cal. 2d 751, 755 ( Griffin II ).) On the other hand, “apportionment according to popu lation is the primary go al in redistricting, and the other factors enumerated may only be gi ven a subsidiary effect and cannot warrant large deviations from equality of population.” ( Griffin v. Board of Supervisors (1963) 60 Cal.2d 318, 321 ( Griffin I ) [secondary factors could not jus tify Monterey’s redistricting plan in which one supervisorial dist rict encompassed 50 percent of the population while another encompassed only 1.5 percent].) For purposes of an equal protection anal ysis, the burden shifts to the agency whose apportionment is challenged to justif y “any significant deviation from population equality.” ( Calderon v. City of Los Angeles (1971) 4 Cal.3d 251, 262 [city charter provision authorizing deviations of 10 percent from p opulation equality in c ity council districts without any justification was constitutionally invalid].) Whet her the burden likewise shifts under a section 21500 analysis is an open question. But, if it does, it would not shift in this case because the deviation from population equa lity was minor. The greatest deviation from ideal equality for any district under Ordinance No . 3218 is less than half a percent. Pelfrey relies on Miller v. Board of Supervisors (1965) 63 Cal.2d 343 for the proposition that equality must be exact. In Miller, an almost two-to- one disparity between the largest and smallest supervis orial districts in Santa Clara County could not withstand an equal protection challenge because it was not justified by secondary factors. ( Id. at pp. 346- 347.) The court invalidated th e plan, observing that, “The board's position that a 2 to 1 disparity does not necessarily violate constit utional dictates fails to give sufficient6. consideration to the reasons why the board fails to seek exact equality in the instant case.” ( Id. at p. 349.) Pelfrey is correct that here the Boar d did not initially seek “exact equality”; but equality was its primary goal and it achieved near equality, unlike the County of Santa
Clara in Miller. County staff initially advised the Board, incorrectly, that “a variance of 3% is presumed to be valid.” But it also advise d the Board, correctly, that “[t]he first and
foremost consideration is that the population shall be as n early equal in population as possible. . . . From there, the secondary cons iderations come into play and the court will allow a wide variance only if the secondary c onsiderations are exceedingly pervasive and don’t allow for any other practical way to draw the district lines.” Staff’s misconception
about a safe harbor was base d on two California Supreme Cour t cases, decided after the 1960 census, in which the cour t applied a “presumption of valid ity” to 3 percent deviations from equal in supervisorial redistri cting plans under section 21500. ( Miller v. Board of Supervisors , supra , 63 Cal.2d 343, 350; Wiltsie v. Board of Supervisors (1966) 65 Cal.2d 314, 315-316.) In 1971 , the court abandoned mathematical presumptions in redistricting cases, deciding that mathematical safe ha rbors violate the equal protection clause by excusing deviation from "one-vote, one-per son" without justif ication based on any legitimate considerations. ( Calderon v. City of Los Angeles, supra, 4 Cal.3d 251, 271.) The record in this case, read as whole, demons trates that the Board’s “primary goal” was equality, notwithstanding sta ff’s erroneous advice. Pelfrey argues that the Board did not establish districts “as nearly equal in population as may be” because better popul ation equality was possi ble under the other options considered by the Board. But the maximum deviation from ideal equality in any district was 0.46 percent and that deviatio n was within the Board’s discretion based on secondary considerations. Whether secondary f actors justify a particular deviation must be determined on a case-by-case basis, in view of all the facts and circumstances faced by the agency. ( Griffin II, supra, 60 Cal.2d 751, 755.) In Griffin II , for example, secondary criteria justified a substantial deviation from p opulation equality in whic h the largest district had 2.2 times the populati on of the smallest. ( Id. at pp. 753-755.)7. Pelfrey points to an equal protecti on case in which a 3 percent deviation among Missouri’s congressional districts 2 was held to be constitutionally invalid where it was “not seriously contended that the Missouri Legislature came as close to equality as it might have come,” and at least one legislator “deemed it proper to a ttempt to achieve a 2%
level of variance rather than to seek population equality.” ( Kirkpatrick v. Preisler (1969) 394 U.S. 526, 531.) But in Kirkpatrick, there was no effort to justify the deviation under any legitimate consideration. The same was true in Calderon. Here, secondary factors, including geographic compactne ss and integrity of other comm unities of interest, justified the minor deviation from equality. Pelfrey argues that secondary consid erations actually weighed against the Board’s decision to adopt Ordi nance No. 3218, because the or dinance extended District 5 across a topographic boundary (the Cuesta Gr ade) into downtown San Luis Obispo and because it split communities of in terest (Templeton and the City of San Luis Obispo) when it displaced 15 percent of the school district a nd divided the City of San Luis Obispo among three districts. But consideration of secondary factors is a matter for the Board’s discretion, taking into account th e county and all of its districts as a whole, no t only the desires of the Templeton residents. No opt ion was perfect, and each was opposed. Pelfrey’s Option C also split the City of San Luis Obispo amo ng three districts and divided another school district and advisory group. The record does not support Pelfrey’s contention that the Board exercised its discretion in an arbitrary or capri cious manner or that it failed to proceed as required by s ection 21500. Even if we were to consider Pelfrey’ s equal protection claim, which he did not raise in the trial court, he would not succeed. The record demonstrates that the Board sought to achieve population equality as ne arly as practicable and gave secondary consideration to legitimate factors such as geographic contiguity, in tegrity of communities of interest, and geographical compactness. In Wilson v. Eu (1992) 1 Cal.4th 707, a plan to reapportion state legislative and congressional districts w ithstood an equal protection

2 Congressional redistricting is governed by article I, section 2, of the federal Constitution and requires popul ation equality “as nearly as is practicable.” ( Wesberry v. Sanders (1964) 376 U.S. 1, 7-8.)8. challenge where each district varied by less than one percent (legislativ e districts) or 0.25 percent (congressional districts) from "ideal " population equality and these deviations were justified by legitimate state objectives of form ing reasonably compact districts. Here, the deviation is equally minor and is similarly justified.
DISPOSITION The judgment is affirmed. Respon dent shall recover costs on appeal.
NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.9. Jac A. Crawford, Judge
Superior Court County of San Luis Obispo

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Treder Land Law, Sophia J. Tr eder for Plaintiff and Appellant. Rita L. Neal, County Co unsel, Timothy McNulty, A ssistant County Counsel, for Defendant and Respondent.