Granted Intervention, Red Brennan Group Papers Judge In Suit To Vacate Measure K

Today, San Bernardino County Superior Court Judge David Cohn approved a motion by The Red Brennan Group to intervene in a lawsuit the members of the county board of supervisors are pursuing in an effort to overturn Measure K, a local government reform effort passed by voters in the November election. Approved by more than two-thirds of the county’s voters, the initiative sets total compensation for an elected supervisor at $60,000 per year and limits an elected supervisor to a single four-year term.
The Red Brennan Group sponsored Measure K this year, eight years after the late Kiernan “Red” Brennan led a similar county government reform effort, the centerpiece of which was a pay-and-benefits reduction initiative, Measure R, passed by the voters in the November 2012 election. Measure R called for reducing each individual board member’s total annual compensation – salary and benefits of just under $220,000 – by nearly $160,000 to $60,000. The supervisors at that time were able to sidestep Measure R by putting their own “reform” measure on the same ballot, Measure Q, which called for leaving the supervisors’ $151,000 salaries intact while reducing their $69,000 in yearly benefits to $64,000, such that their annual compensation totaled just under $215,000. The supervisors heavily promoted Measure Q as a “sensible” reform effort, and while Measure R passed by a convincing 64.25 percent to 35.75 percent, with 326,939 voters in favor of it and 181,907 opposed, Measure Q achieved passage by a 67.28 percent to 32.72 percent margin, 344,226 votes in support to 157,369 against it. Because Measure Q passed by more votes than did Measure R, the supervisors’ measure went into effect instead of Red Brennan’s.
This year, after the Red Brennan Group and the chief proponent of what was ultimately designated by the county registrar of voters as Measure K, Nadia Renner, succeeded in gathering 75,132 signatures of county voters to put that initiative on the November ballot, the board of supervisors attempted to repeat what had occurred in 2012 by using its power as an elected body to place an alternative initiative on the ballot, one which was billed again as a reform measure that would adjust certain outdated language used in the county charter and also set the board members’ individual compensation packages at $290,000. Measure J further replicated an existing limitation of three four-year terms on supervisors. It was the supervisors’ collective hope that just as Measure Q had outperformed Measure R at the polls in 2012, their measure in 2020, designated by the registrar of voters as Measure J, would likewise gather more support than Measure K, and thus keep the pay reductions in Measure K from going into effect. As it turned out, however, Measure K did much better at the polls than did Measure J. Measure K passed with 516,184 or 66.84 percent of the 772,282 voters participating supporting it, and 256,098 voters or 33.16 percent opposed.
According to the final certified election results released by the San Bernardino County Registrar of Voters, Measure J passed, with 378,964 votes or 50.72 percent of the 747,188 votes cast supporting it and 368,224 or 49.28 percent opposed.
Under state law, a conflict between the provisions of two measures simultaneously adopted by the voters is resolved by implementing the provisions of the winning measure that gets the most votes and disregarding the conflicting provisions of a winning measure that gets fewer votes. This principle was applied in 2012 with regard to the conflicting provisions of measures Q and R. Expectations were this year that Measure K’s provisions – consisting of limiting supervisors to a total annual compensation of $60,000 and a single four-year term – would by virtue of the greater number of votes it received trump Measure J’s provisions allowing a supervisor a $290,000 per year stipend including salary and benefits and the option of serving three four-year terms, subject to the will of the voters in three separate elections.
Once the election results were certified, the board of supervisors, using taxpayer funds, contracted with three Los Angeles-based attorneys – Bradley Hertz, James Sutton and Nicholas Sanders – to take legal action to block Measure K from going into effect. In their suit on behalf of the board of supervisors, Hertz, Sutton and Sanders did not sue the Red Brennan Group or Renner, but rather the supervisors’ own employee, San Bernardino County Clerk of the Board Lynna Monell. The legal action, a petition for a writ of mandate, alleges that Measure K is fatally flawed because it “violates California Constitution Article XI, Section l(b) by seeking to set supervisor compensation via citizen initiative… [and] it exceeds the initiative power of the electorate by intruding on matters that are exclusively delegated to the governing body, in this case the San Bernardino County Board of Supervisors… [and its] term limit provision for members of the county board of supervisors violates the First and Fourteenth Amendments to the United States Constitution [by] impermissibly infring[ing] on voters’ and incumbents’ First and Fourteenth Amendment rights.” Additionally, the writ of mandate maintains Measure K violates what “the single subject rule” pertaining to voter initiatives and that “Measure K must not be implemented because it does not embrace a single subject.”
A hearing on the petition for a writ of mandate was held on December 4 before San Bernardino Superior Court Judge David Cohn.
Hertz, Sutton and Sanders pressed Judge Cohn to grant their motion for a temporary restraining order to halt the implementation of Measure K while the petition for a writ of mandate is being litigated.
The Red Brennan Group, which has been authorized by Measure K’s official proponent, Renner, to defend her interests, was present at the hearing in the form of its attorney Aaron Burden. Also in attendance was attorney Cory Briggs, representing the Inland Oversight Committee. Both Burden and Briggs, on behalf of their clients, had drafted and submitted motions to intervene as defendants in the case. Judge Cohn, initially, held the position that neither Burden nor Briggs nor the Red Brennan Group nor the Inland Oversight Committee were parties involved in the matter, as the board of supervisors’ suit is against the clerk of the board, and as such they did not have status to involve themselves in the proceedings. The petition for a writ of mandate requests that the court order Monell “not to take any actions that would cause the implementation of Measure K’s provisions.”
Judge Cohn on December 4 appeared poised to rule in favor of the board of supervisors and grant the temporary restraining order. When, however, Briggs asserted there was a question as to whether the court had jurisdiction in interfering with a matter already decided by a vote of the people, Judge Cohn balked, thereafter delaying his decision, and he gave both Burden and Briggs an opportunity to file by Friday, December 11, briefs supporting why the Red Brennan Group’s and the Inland Oversight Committee’s motions to intervene should be granted, allowing them a seat at the table to argue the case against the petition for a writ of mandate’s request that Measure K be prevented from going into effect. Judge Cohn gave Hertz, Sutton and Sanders until Monday, December 14 to submit a brief as to why Measure K is to be stayed.
It is the Red Brennan Group’s position that upon the election results being certified, voter-mandated Measure K became a county ordinance, and, accordingly, the San Bernardino County Office of County Counsel, the county’s in-house stable fo lawyers headed by County Counsel Michelle Blakemore, is responsible to defend both Measure K, on behalf of the voters who passed it, and Monell, as the clerk of the board and a county employee. Blakemore and the office of county counsel, however, have not undertaken to defend either in court filings or in open court discussion.
The result, the Red Brennan Group maintains, is that “an initiative approved by over 66% of county voters is being ignored by the public servants sworn to protect the voters’ interests.”
Today’s hearing on the motions to intervene began in Judge Cohn’s court and ultimately ended later that day in front of Judge Donald Alvarez.
Judge Cohn, in accordance with settled law, approved the Red Brennan Group’s motion to intervene. Thereupon the group’s attorney, Aaron Burden, immediately followed with a preemptory challenge of Judge Cohn, based on the group’s belief it will not be able to have a fair and impartial trial or hearing before him. The matter was then sent to Judge Alvarez for his consideration.
Upon taking the case up, Judge Alvarez delayed further rulings pertaining to motions now pending, and scheduled a hearing for January 28. At that point he is to hear the motion to intervene from the Inland Oversight Committee and to consider the board of supervisors’ request for a temporary restraining order.
The supervisors and their supporters argue that the reduction of their pay would be bad public policy and harm the quality of the county’s governance. The Red Brennan Group maintains putting the reins of county power in the hands of elected officials remunerated at a level equal to the income of the average county household and chosen to serve a single term will create a new culture of politics in which the incentive to remain in office will be removed, thereby preventing the corruption of government function by donors willing to donate tens of thousands or hundreds of thousands or even millions of dollars to officeholders to gain control of their decision-making authority over those donors’ projects or applications for county contracts or franchises.

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