Filed 4/13/21 Blakemore v. Bruce CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

MICHELE D. BLAKEMORE, as County Counsel, etc.,

E074127

Plaintiff and Respondent, (Super.Ct.No. CIVDS1802537) v.

OPINION

GAGE BRUCE,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.

Affirmed.

The Red Brennan Group and Aaron D. Burden for Defendant and Appellant.

Michelle D. Blakemore, County Counsel, and Laura Crane, Deputy County

Counsel, for Plaintiff and Respondent.

In 2019, we affirmed a judgment excusing the San Bernardino County Counsel’s

office from the duty to prepare ballot titles and summaries for six initiatives proposed by

Gage Bruce and David Gates. (Gates v. Blakemore (2019) 39 Cal.App.5th 32, 34, 40

1 (Gates).) While that appeal was pending, Mr. Bruce submitted notices of intent to

circulate for signatures four new initiatives (Nos. 9, 10, 11, & 12) to the San Bernardino

County Registrar of Voters. In response, the county counsel’s office initiated this action

for declaratory relief. The trial court entered judgment for the county counsel’s office,

ruling that the new initiatives are invalid and relieving county counsel of its duty to

prepare ballot titles and summaries. Mr. Bruce appeals, contending the trial court erred

(1) by excusing the county counsel’s office from its ministerial duty in order to allow it to

engage in preelection review of the initiatives instead, (2) by determining initiatives Nos.

9, 10, 11, and 12 were invalid, and (3) by not addressing his fundamental right to free

speech. Finding no error, we affirm.

II. PROCEDURAL BACKGROUND AND FACTS

A. Related Action (Super. Ct. Riverside, case No. CIVDS 1723296).

“In 2017, David Gates and Gage Bruce submitted to the San Bernardino County

Registrar of Voters notices of intent to circulate for signatures with respect to nine

initiatives. The initiatives were referred to county counsel for preparation of ballot titles

and summaries. (See Elec. Code, § 9105, subd. (a).) County counsel prepared ballot

titles and summaries for two of the initiatives, and a third initiative was withdrawn.

Litigation ensued with respect to the remaining six initiatives, . . . Initiatives 1, 2, 5, 6, 7,

and 8.” (Gates, supra, 39 Cal.App.5th at pp. 34-35.) Judicial review of these six

initiatives resulted in the trial court finding them to be invalid and, thus, excusing county

counsel from preparing a ballot title and summary since they could not be placed on the

ballot. (Id. at p. 37.) We affirmed the trial court’s decision, finding “Initiatives 1, 2, 5, 6,

2 and 7 each exceed the initiative power of the electorate by intruding on budgetary matters

that are exclusively within the authority of the board of supervisors. 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.” (Id. at p. 38.)

Relevant to the current action is initiative No. 2, which is entitled, “‘The San

Bernardino County Charter Accountability Measure.’” (Gates, supra, 39 Cal.App.5th at

p. 35.) Initiative No. 2’s “stated purpose is to ‘assure that the business of the County 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.’ If 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 structure of the County government. The initiative would, among other

things, eliminate the current chief executive officer position, providing instead that the

chair of the board of supervisors shall be ‘the general executive agent of the Board.’ The

chair would be assisted in this executive role by a newly created ‘County Administrative

Officer.’ The chair’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 chair would be charged with reviewing ‘all departmental and

agency requests and all items in the proposed budget . . . .’” (Ibid.)

“A second category of revisions that would be made by Initiative 2 is a limitation

on budget expenditures for board members. Specifically, the ‘total annual budget for

each Member of the Board of Supervisors’—defined to include ‘all office operations . . .

3 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 board member’s own compensation—would not be permitted to ‘exceed five

(5) times the annual compensation amount for each Member . . . .’” (Gates, supra,

39 Cal.App.5th at pp. 35-36.)

“Third, Initiative 2 would limit the compensation of elected County officials. It

provides that the ‘annual compensation (including salary and benefits)’ of members of

the board of supervisors ‘shall be equal to, and shall never exceed, the median household

income in San Bernardino County . . . .’ The annual compensation of the chair of the

board, as well as other ‘Elected County Officials’ whose compensation is set by the

board, would be limited to three times the median household income in San Bernardino

County. 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.” (Gates, supra,

39 Cal.App.5th at p. 36.)

“Finally, Initiative 2 would place restrictions—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.’ It would also

require the County to ‘ensure the ratio of patrol deputies to “citizens served”’ be at least

4 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 primary law

enforcement patrol duties, excluding cities/areas where the Sheriff provides primary law

enforcement patrol duties via contract.’” (Gates, supra, 39 Cal.App.5th at p. 36.)

B. The Current Action.

In early 2018, Mr. Bruce divided initiative No. 2 into four new initiatives,

changing and/or adding language not addressed in the related action but essentially

offering similar amendments to the charter as provided in initiative No. 2. On January

16, 2018, he submitted notices of intent to circulate for signatures initiatives Nos. 9, 10,

and 11 to the registrar of voters’ office, and on February 26, 2018, he submitted a notice

of intent to circulate for signatures initiative No. 12.

Initiative No. 9 is entitled, “Initiative to Set Compensation Limits, Cease

Retirement Benefits, and Limit Staff Size and Cost for Members of the County Board of

Supervisors.” Its stated purpose is “to 1) make the position of elected Supervisor a part-

time position, 2) adjust compensation to reflect part-time status, 3) cease the accrual of

retirement benefits for County Supervisors, 4) require the staff budget for each

Supervisor to be set at $500,00 per year, [and] 5) require staff positions that support

County Supervisors be drawn from the County Classified Service.”

Initiative No. 10 is entitled, “Initiative to Set Compensation Limits and Limit Staff

Size and Cost for Members of the County Board of Supervisors.” Its stated purpose is

“to 1) make the position of elected Supervisor a part-time position, 2) adjust

compensation to reflect part-time status, 3) require the staff budget for each Supervisor to

5 be set at $500,000 per year, [and] 4) require staff positions that support County

Supervisors be drawn from the County Classified Service.”

Initiative No. 11 is entitled, “The Initiative to Limit San Bernardino County

Supervisor Staff Size and Cost.” Its stated purpose is “to avoid the potential for a

political patronage system via County Supervisor staffing.” To that end, initiative No. 11

“requires the staff budget for each Supervisor to be set at $500,000 per year, . . . adjusted

with reference to the Bureau of Labor Statistics Consumer Price Index[, and] positions

supporting County Supervisors be staffed with personnel from the County Classified

Service.”

Initiative No. 12 is entitled, “Initiative to Set Compensation Limits and Adjust

Staff Support for Members of the County Board of Supervisors.” Its stated purpose is to

address the board of supervisors’ “disengage[ment] from hands-on leadership” and

“allow[ance of] the size of County government to grow without constraints.” To that

end, initiative No. 12 requires the “position of County Supervisor shall be considered a

part-time position” with a “total compensation” of “five thousand dollars ($5,000.00) per

month” (including salary and benefits), subject to annual increases based on the cost of

living, “not to exceed five percent (5%) per year.” The compensation may only be

changed “by a vote of the people at the time of a general election.” Also, initiative No.

12 requires the total annual budget of each board member “shall not exceed five (5) times

the annual compensation amount for each member as provided in Article VI, Section 1,”

as amended herein.

6 Additionally, initiative Nos. 9, 10, and 11 sought to add article VI, section 6,

which would limit “staffing expenses” to “$500,000 per supervisor on an annual basis”

and require all “County Supervisor support staff positions . . . be filled with personnel

from the County Classified Service.” Initiative Nos. 9, 10, and 12 sought to amend

article I, section 1, to recognize that the “position of County Supervisor shall be

considered a part-time position.”

The county counsel’s office reviewed and analyzed each initiative and determined

that, as written, they were invalid because they: (1) “are not legislative in nature,”

(2) “encroach on matters of statewide concern and therefore are not properly the subject

of an initiative,” (3) “infringe on matters exclusively reserved by the California

Constitution to the County of San Bernardino Board of Supervisors,” (4) “contain

provisions that conflict with California constitutional and statutory law,” (5) “interfere

with essential government functions,” (6) “set forth arbitrary standards,” and (7) are

“unconstitutionally vague.” County counsel asserted that since the initiatives are invalid,

to provide “a ballot title and summary” “would be misleading to the electorate, and

would result in voter confusion and fiscal inefficiencies.” Thus, on January 31, 2018, the

county counsel’s office initiated this action, seeking declaratory relief. After finding that

the initiatives were invalid, the trial court entered judgment excusing the county

counsel’s office from its duty pursuant to Elections Code 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.” Mr. Bruce appeals.

7

II. DISCUSSION

A. Preelection Review of Initiatives.

To begin with, Mr. Bruce challenges the propriety of excusing the county

counsel’s office from its ministerial duty to provide a ballot title and summary (Elec.

Code, § 9105, subd. (a))1 in order to allow preelection judicial review of his initiatives.

Because he “fails to establish that ‘prepetition’ review of his initiative measures is

constitutionally proscribed” (Widders v. Furchtenicht (2008) 167 Cal.App.4th 769, 781),

we reject his challenge. (Gates, supra, 39 Cal.App.5th at p. 38.)

As we have recognized, “[i]t 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 the exercise of the people’s franchise,’

but this is true only ‘in the absence of some clear showing of invalidity.’ [Citation.] 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.’” (Gates, supra, 39 Cal.App.5th at p. 38.)

Nonetheless, Mr. Bruce argues that preelection review of a proposed initiative

measure is limited to those cases “where the alleged invalidity arises from the form of the

1 Election Code, section 9105, subdivision (a), in relevant part, provides: “The county elections official shall immediately transmit a copy of any proposed measure to the county counsel. Within 15 days after the proposed measure is filed, the county counsel shall provide and return to the county elections official a ballot title and summary for the proposed measure. . . .”

8 proposed measure.” Because the alleged invalidity in this case “arises from the substance

of the proposed measure,” he contends “preelection review is not appropriate.” To

explain this difference, he cites Costa v. Superior Court (2006) 37 Cal.4th 986 (Costa).

In that case, the legal challenge did not involve “the substantive validity of the initiative

measure but rather . . . a procedural claim pertaining to the preelection petition-

circulation process.” (Id. at p. 1006.) Our Supreme Court observed: “[B]ecause the

question at issue . . . is whether the initiative measure has satisfied the constitutional or

statutory procedural prerequisites necessary to qualify it for the ballot, it is logical and

appropriate for a court to consider such a claim prior to the election, because if the

threshold procedural prerequisites have not been satisfied the measure is not entitled to be

submitted to the voters. Unlike a challenge to the substantive validity of a proposed

measure, it cannot properly be suggested that it would be premature to consider such a

claim prior to the election, because the focus of the issue is solely upon whether the

measure has qualified for the ballot, and not upon the validity or invalidity of the measure

were it to be approved by the voters.” (Ibid.)

Although Costa, supra, 37 Cal.4th at page 1005, establishes that it is more

appropriate, in general, to review challenges to initiative measures after an election, the

court has also deemed it appropriate in some instances—for instance, when a substantial

question has been raised regarding the proposition’s validity, and the “hardships from

permitting an invalid measure to remain on the ballot” outweigh the harm potentially

posed by “delaying a proposition to a future election”—to conduct a preelection judicial

review. (Howard Jarvis Taxpayers Assn. v. Padilla (2016) 62 Cal.4th 486, 494 [Prop. 49

9 withheld from ballot to allow judicial review of the proposition’s validity]; see id., at

pp. 496-497; accord, American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 697

[granting preelection relief when initiative measure violated article V of the federal

Constitution and exceeded the scope of the initiative power].) This is such a case.

Here, the initiatives primarily involve issues (limiting board member benefits or

budgets) that were directly addressed in the related action and found to be invalid.

(Gates, supra, 39 Cal.App.5th at pp. 39-40.) The remaining novel issues involve

reclassifying the position of county supervisor and limiting each board member’s control

over staff and expenses. Because the subject matter of these novel issues—arguably

similar to the subject matter previously struck down—raises significant questions

regarding the initiatives’ validity, “it was proper for [county counsel] to initiate its

declaratory relief action as a means of disputing, in a preelection challenge, [their]

validity.” (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; see City of San Diego v. Dunkl (2001) 86 Cal.App.4th 384, 389

[“[P]reelection 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.”].)

B. Validity of Initiative Nos. 9, 10, 11, and 12.

Mr. Bruce contends that the trial court erred by determining initiative Nos. 9, 10,

11, and 12 were invalid. We disagree.

10 “[T]he people’s power to propose and adopt initiatives is at least as broad as the

legislative power wielded by the Legislature and local governments.” (California

Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 935; see, e.g., DeVita v.

County of Napa (1995) 9 Cal.4th 763, 775 (DeVita) [discussing local right to initiative].)

“‘[T]he local electorate’s right to initiative and referendum is guaranteed by the

California Constitution, article II, section 11 . . . .’ [Citation.] Authority over certain

matters, however, is delegated ‘exclusively to the governing body, thereby precluding

initiative and referendum.’” (Gates, supra, 39 Cal.App.5th at p. 38.) As relevant here,

“[t]he California Constitution expressly reserves for the ‘governing bodies’ of charter

counties the authority to set the number of county employees, their duties, and their

compensation. (Cal. Const., art. XI, § 4, subd. (f).)[2]” (Gates at p. 39.)

To the extent initiative Nos. 9, 10, 11, and 12, offer similar amendments to the

charter as previously provided in initiative No. 2—limiting retirement benefits3 and the

board of supervisors’ authority to set the compensation of certain county employees—

they are invalid. (Gates, supra, 39 Cal.App.5th at pp. 39-40; County of Sonoma v.

2 “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.)” (Gates, supra, 39 Cal.App.5th at p. 39, fn. 4.)

3 Pension benefits are a vital component of an employee’s compensation. “‘[T]he fixing of the number of employees, the salaries and employee benefits is an integral part of the statutory procedure for the adoption of the county budget . . . .’” (County of Sonoma v. Superior Court (2009) 173 Cal.App.4th 322, 343, italics added.)

11 Superior Court, supra, 173 Cal.App.4th at pp. 342-343 [The fixing of the salaries of

county employees falls “within the legislative powers of a county board of

supervisors.”].) Likewise, to the extent the novel issues identified in the initiatives seek

to place limits on the board of supervisors’ authority to appoint certain county employees,

namely their support staff, or reclassify the position of county supervisor, the initiatives

are invalid because they infringe on authority exclusively delegated to the board of

supervisors by the California Constitution. (Cal. Const., art. XI, § 4, subds. (b), (e).)4

Notwithstanding what we have stated ante, Mr. Bruce asserts that the “statutory

language at issue supports a weak inference that the grant of power is exclusive[;

however,] the inclusion of the term ‘governing bodies’ must be read as including the

electorate and their constitutional right to initiative, which is coextensive with the

legislative power of the Board of Supervisors.” Not so. The California Constitution

defines the “governing body” of a county as consisting of “5 or more members, elected

(1) by district or, (2) at large, or (3) at large, with a requirement that they reside in a

district.” (Cal. Const., art. XI, § 4, subd. (a).) “If the language is clear, there can be no

room for interpretation; effect must be given to the plain meaning of the words.”

(Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 818 [controversy

concerned the term “‘governing body’” in Evid. Code, § 669.5, subd. (a), and the

reference in subd. (d) to matters adopted by initiative]; see Teachers Management & Inv.

4 “County charters shall provide for: [¶] . . . [¶] (b) The compensation, terms, and removal of members of the governing body. . . . [¶] . . . [¶] (e) The powers and duties of governing bodies . . . .” (Cal. Const., art. XI, § 4, subds. (b), (e).)

12 Corp. v. City of Santa Cruz (1976) 64 Cal.App.3d 438, 446 [“In general, a court should

not look beyond the plain meaning of a statute when its language is clear and

unambiguous, and there is no uncertainty or doubt as to the legislative intent.”].) Given

the clear language in the California Constitution, the term “‘governing body’” excludes

the electorate. (Building Industry Assn. v. City of Camarillo, at p. 818; see Riedman v.

Brison (1933) 217 Cal. 383, 387 [construing reference in the Metropolitan Water District

Act to the “‘governing body’” barred an initiative to withdraw a city from regional

metropolitan water district].)

Considering our conclusions ante, we need not address the arguments regarding

other possible bases for finding the proposed initiatives invalid. Mr. Bruce has not

demonstrated any error in the trial court’s ruling.

C. Right to Free Speech.

Finally, Mr. Bruce asserts that the trial court erred by not addressing his

fundamental right to free speech. We disagree. “‘[W]hile the right of free speech is one

of the most precious rights to citizens of a free and open society, it is not without limit

when the state Constitution provides it with a special forum for an initiative process in

which voters are asked to sign a petition which ultimately may impact the community.’”

(Widders v. Furchtenicht, supra, 167 Cal.App.4th at p. 780; see City of Riverside v.

Stansbury, supra, 155 Cal.App.4th at p. 1592 [rejecting initiative proponent’s contention

that he had “an unfettered right to circulate a petition and to present it to the sovereign”

because “there is no constitutional right to place an invalid initiative on the ballot”].)

13

III. DISPOSITION

The judgment is affirmed. Respondent is awarded costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

FIELDS

J.

RAPHAEL

J.

14