1

Filed 8/22/19 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

DAVID GATES, Plaintiff and Appellant ; GAGE BRUCE, Plaintiff, Cross

- defendant and Appellant,

v. MICHELLE BLAKEMORE, Defendant, Cross

- complainant and Respondent ;

BOB PAGE , as Registrar of Voters, etc., Defendant and Respondent

.
MICHELLE BLAKEMORE, Plainti ff and Respondent,

v. GAGE BRUCE et al., Defendants and Appellants

. E069998
(Super.Ct. Nos. CIVDS1723296 & CIVDS1722082)
OPINION2

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.
Affirmed. Clearview Law and Shannon Gallagher ; The Red Brennan Group and Aaron D. Burden, for Appellant s David Ga t es and Gage Bruce. Michelle D. Blakemore, County Counsel, and Laura Crane, Deputy County Counsel, for Respondents Michelle Blakemore and Bob Page

. In this appeal, we affirm a judgment excusing county counsel for the County of San Bernardino (County) from the duty to prepare ballot titles and summaries for six proposed initiatives. This means that the initiatives will not get on the ballot. We hold that the trial court’s preelection review of the initiatives was proper, and that the
initiatives were invalid. Several of the initiatives intrude on areas that the California Constitution expressly reserves for the governing body of the County and thereby excludes from the initiative power of the electorate; several of them would restructure the County’s government in a m anner that would violate the Government Code.
I. BACKGROUND The judgment here resolved two consolidated lawsuits relating to a series of proposed initiatives. 1 In 2017, David Gates and Gage Bruce submitted to the San

1 The proponents of the initiatives, David Gates and Gage Bruce, were defendants in the first of the two lawsuits (Super ior Court case No. CIVDS1722082), a declaratory relief action brought by then

- County Counsel Jean Rene Basle, who has since been replaced in that capacity by Michelle Blakemore. Gates and Bruce then filed a separate lawsuit seeking a writ of mandate (Super ior Court case No. CIVDS1723296), and naming as defendants both c ounty c ounsel and t he Registrar of Voters Michael J. Scarpello. Both lawsuits related to the same two proposed initiatives. County c ounsel subsequently filed [footnote continued on next page]3

Bernardino County Registrar of Voter s notices of intent to circulate for signatures with respect to nine initiatives. The initiatives were referred to c ounty c ounsel for preparation
of ballot titles and summaries

. (See Elec. Code § 9105, subd. (a).) County c ounsel prepared ballot titles a nd summaries for two of the initiatives, and a third initiative was
withdrawn. Litigation ensued with respect to the remaining six initiatives, which the parties have referred to as Initiatives 1, 2, 5, 6, 7, and 8. Initiative 1 was entitled by its propo nents “The San Bernardino County Fair Pay and Benefits Measure.” Its stated purpose is “to couple pay and benefits for county employees to the average pay and benefits earned by employees working in the private

sector in San Bernardino County.” To that e nd, Initiative 1 would require the County to “use all legal means possible to ensure wages and benefits for County employees are equal to [and not in excess of ] the average wages and benefits for the private sector

. ” “Wages and benefits for sheriff deputi es” are exempted from such a limitation , as are wages and benefits set by “any existing contracts or Memoranda of Understanding between the County and any represented County employee group

. ” The benefits of County employees “who hold vested benefits under California law” are also exempted. Initiative 2 was entitled by its pro ponents “ The San Bernardino County Charter Accountability Measure .” Its stated purpose is to “assure that the business of the County

a cross - complaint in the writ matter seeking declaratory relief regarding four later

submitted proposed initiatives . The cross

- complaint names only Bruce, not Gates, as a cross - defendant, because he alone submitted those four proposed initiatives; Bruce and Gates had jointly submitted the first two. In this appeal, both Gates and Bruce are appellants, and both Blakem ore and Scarpello, in their respective official capacities, are respondents.4

of San Bernardino is conducted in an open and responsible manner that is fiscally sound and that the Board of Supervisors through its Chair are held to account for the actions taken on behalf of the County.” I f enacted, it would make revisions to the County’s
charter and code of ordinances that can be grouped into four broad categories. One category is changes to the struct ure of the County government. The initiative would , among other things, eliminate the current c hief e xecutive o fficer position , providing
instead that the c hair of the b oard of s upervisors shall be “the general executive agent of the Board.” The c hair wo uld be assisted in this executive role by a newly created

“ County Administrative Officer

. ” The c hair’s new responsibilities would include preparing, “ in coordination with the County Administrative Officer and the County Auditor, ” the annual County budget. In performing this duty, the c hair would be charged with reviewing “all departmental and agency requests and all items in the proposed budget

. . . .”
A second category of revisions that would be made by Initiative 2 is a limit ation on budget expenditures for b oard members. Specifically, the “total annual budget for each Member of the Board of Supervisors ”

— defined to include “all office operations .

. . including staff member salaries, office equipment, rent, vehicle allowances , credit cards, health insurance, life insurance, leave and portable communication devices,” but not to
include the b oard member’s own compensation

— would not be permitted to “ exceed five (5) times the annual compensation amount for each Member

. . . .”
Th ird, Initiative 2 would limit the compensation of elected County officials. It provides that the “annual compensation (including salary and benefits) ” of members of5

the b oard of s upervisors “shall be equal to, and shall never exceed, the median household income in San Bernardino County

. . . .” The annual compensation of the c hair of the
b oard, as well as other “Elected County Officials” whose compensation is set by the
b oard, would be limited to three times the median household income in San Bernardino
C ounty. Also, any new or reelected “elected official[s] serving San Bernardino County” would not receive any “retirement benefits that extend beyond the term of the office holder,” and current elected officials would “retain any retirement benefits already accrued and vested while in office,” but neither the County nor the official would make any further contributions once the current term of the official expires

. Finally, Initiative 2 would place restriction s

— both maximums and minimums

— on the number of certain County employees. It would limit “[t]he total number of county elected, appointed, or other public officials or employees paid by the County .

. . [to] one county employee for every 108 residents in the County of San Bernardino.” I t would also

re quire the County to “ensure the ratio of patrol deputies to ‘citizens served’” be at least one deputy for every 1,398 residents, defining the term “ ‘ citizens served ’ ” to mean “the population of the county in all areas where the County Sheriff provides prim ary law enforcement patrol duties, excluding cities/areas where the Sheriff provides primary law enforcement patrol duties via contract. ” Initiative 5 was entitled by its proponent the “Cap on the Total Number of County Employees Initiative.” In substanc e, it repeats one aspect of Initiative 2; Initiative 5 would limit the number of County employees to no more than one for “every 108 residents in the County of San Bernardino.”6

Initiative 6 was entitled by its proponent “Initiative to Ensure an Adequate
N umber of Sheriff Patrol Officers.” In substance, it is similar to one aspect of Initiative 2; Initiative 6 would require the County to “ensure the ratio of patrol deputies to ‘citizens served’ remains at least one deputy for every 1,400 residents served.” Like Initiative 2, it defines the term “ ‘[ c ] itizens served ’ ” to mean “the population of the county in all areas where the County Sheriff provides primary law enforcement patrol duties, excluding cities/areas where the Sheriff provides primary law enforce ment patrol duties via
contract.” Initiative 7 was entitled by its proponent “Initiative to Cap the Total Number of County Employees While Ensuring Sufficient Numbers of Patrol Officers.” In substance,
it is similar to a combination of Initiatives 5 and 6, as well as part of Initiative 2. If enacted, Initiative 7 would limit the number of County employees to no more than one for “every 108 residents in the County of San Bernardino.” It also would require the County to “ensure the ratio of patrol deputie s to ‘citizens served’ remains at least one deputy for every 1 , 480 residents served. ” Like Initiatives 2 and 6, it defines the term

“ ‘[ c ] itizens served ’ ” to mean “the population of the county in all areas where the County Sheriff provides primary law enfo rcement patrol duties, excluding cities/areas where the Sheriff provides primary law enforcement patrol duties via contract.” Initiative 8 was entitled by its proponent “Initiative to Ensure Elected Officials are Directly Responsible for Supervision of th e County.” In substance, it would make the

same changes to the structure of County government that are included in Initiative 2 , discussed above, including expanding the duties of the c hair of the b oard of s upervisors,7

eliminating the current c hief e xecutive o fficer position, and creating a new c ounty

a dministrative o fficer who would assist the c hair. Pursuant to a stipulation, the trial court addressed the parties’ arguments regarding
all six proposed initiatives in a single hearing on January 18, 2 018. The trial court sided
with c ounty c ounsel, denying Gates and Bruce’s writ petition and granting c ounty

c ounsel declaratory relief

. T he judgment , entered on February 1, 2018, excuses c ounty

c ounsel from her duty pursuant to section 9105, subdivision (a), to prepare a ballot title and summary for the initiatives on the ground that each is “invalid and may not be placed
on the ballot.” 2
II. DISCUSSION Gates and Bruce contend that the trial court should not have engaged in any preelection review of the proposed initiatives, and also that , even if review were proper, the initiatives are not invalid. We disagree with both contentions and affirm the judgment. First, the trial court did not err by addressing the merits of c ounty c ounsel’s preelection challenge s to the proposed initiatives. It is “usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing t he exercise of the people’s franchise,” but this is true only “in the absence of some clear showing of

2 On February 15, 2018, t his court summarily denied Gates and Bruce’s petition for writ of mandate compelling an order that c ounty c ounsel prepare ballot titles and summaries of the proposed initiatives. ( Gates v. Superior Court , case No. E069 895.)8

invalidity.” ( Brosnahan v. Eu (1982) 31 Cal.3d 1, 4.) It is “well accepted that preelection review of ballot measures is appropriate where the validity of a proposal is in serious question, and where the matter can be resolved as a matter of law before unnecessary expenditures of time and effort have been placed into a futile election campaign.” ( City of San Diego v. Dunkl (2001) 86 Cal.App.4th 384, 389 , citing Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1153.) It is proper for a city or county to initiate a declaratory relief action as a means of disputing, in a preelection challenge, the validity of an initiative. ( City of Riverside v. Stansbury (2007) 155 Cal.App.4th 1582, 1591, abrogated in part on another ground as stated in Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4th 892, 899.) Al ternatively , governmental officials charged with failing to perform their duties und er the Elections Code may assert invalidity of the
initiative measure as a defense in an action brought to compel performance of the duty. ( Widders v. Furchtenicht (2008) 167 Cal.App.4th 769, 778 .) Here, therefore, it was proper for c ounty c ounsel to see k declaratory relief, and for the trial court to reach the merits of its contention that the proposed initi atives are invalid. Moreover, the trial court correctly determined that, not only are there serious questions about the initiatives’ validity, they are in fact invalid. For the reasons discussed below, I nitiatives 1, 2, 5, 6, and 7 each exceed the initiative power of the electorate by
i ntruding on budgetary matters that are exclusively within the authority of the b oard of

s upervisors . Initiative 8 ( and the corresponding portion of Initiative 2 that it duplicates) would restructure the County’s government in a manner that violates the Government
Code.9

“ [T]he local electorate’s right to initiative and referendum is guaranteed by the
California Constit ution, article II, section 11, and is generally co

- extensive with the legislative power of the local governing body.” ( DeVita v. County of Napa (1995) 9 Cal.4th 763, 775 .) Authority over certain matters, however, is delegated “exclusively to the governing body, thereby precluding initiative and referendum.” ( Id. at p. 776.)
The California Constitution expressly reserves for the “governing bodies” of
charter counties 3 the authority to set the number of county employees, their duties, and their compensation. (Cal. Const., art. XI, § 4, subd. (f)

. 4 ) Ini tiatives 1 and 2 would place
limits on the b oard of s upervisors’ authority to set the compensation of certain C ounty emplo yees. Initiatives 2, 5, 6, and 7 would set limits

— e ither minimums or maximums

— on the number of certain types of County employees. And Initiatives 6 and 7 would
mandate the duties that at least a certain number of County employees must perform.
Each of t hese initiatives therefore would infringe on authority exclusively delegated to
the b oard of s upervisors by the California Constitution, so they are invalid.
Gates and Bruce emphasize that Initiatives 1, 2, 5, 6, and 7 do not set “any specific number of employees, the duties of those employees or compensation to be paid,” but instead “merely set charter policy parameters within which the County will operate.”

3 San Bernardino became a charter county in 1913. ( Penrod v. County of San Bernardino (2005) 126 Cal.App.4th 185, 190; Stats.1913, c h. 33.)

4 “County charters shall provide for: [¶]

. . . [¶] ( f) The fixing and regulation by governing bodies, by ordinance, of the appointment and number of [employees], and for the prescribing and regulating by such bodies of the powers, duties, qualifications, and compensation of such persons, the times at which, and terms for which they shall be appointed, and the manner of their appointment and removal.” (Cal. Const., art. XI , § 4.)10

This is, however, a disti nction without a difference. The initiatives place limits by formula, even if not by specific numbers in the initiative. Gates and Bruce cite no authority in support of the notion that an initiative may limit or control the parameters within which the b o ard of s upervisors may exercise its discretion on matters that are exclusively vested in that body by the California Constitution , and we are aware of no such authority

. Initiative 8 (and the portion of Initiative 2 that it duplicates) is invalid for a
di fferent reason. The County Budget Act (Gov. Code § 29000 et seq.) codifies the procedures for preparing and managing county budgets. Under the County Budget Act,
the b oard of s upervisors must designate either the “administrative officer or auditor” to

co mpile budget requests. ( Gov. Code, § 29060.) The County Budget Act further requires
that the b oard of s upervisors designate the “administrative officer or auditor to review the budget requests and prepare a recommended budget

. ” (Gov. Code, § 2906 1 .) Th e administrative officer or auditor then must submit the recommended budget to the Board. (Gov. Code, § 29062.) Initiative 8 would require that the c hair of the b oard of

s upervisors, rather than the administrative officer or auditor as designated by the b oard , perform these functions. Gates and Bruce assert that Initiative 8 “addresses the structure of government in a matter consistent with state law,” but have offered no reasoned argument in support of that assertion by even attempting to address the apparent incompatibility with the County Budget Act.11

In light of our conclusions above, we need not address the parties’ arguments regarding other possible bases for finding the proposed initiatives invalid. Gates and
Bruce have not demonstrated any error in the trial court’s rulings.
III. DISPOSITION The judgment is affirmed. Respondents are awarded costs on appeal.
CERTIFIED FOR PUBLICATION

RAPHAEL J. We concur:

RAMIREZ P. J.
MENETREZ J.