Measure K Backers Appeal Court Ruling Disallowing Its Implementation

The Red Brennan Group, which last year sponsored the county government-reform initiative Measure K passed by more than two-thirds of San Bernardino County’s voters that was subsequently declared unconstitutional by a judge, has filed an appeal of that ruling.
At present, members of the board of supervisors receive a total annual compensation of $270,000, consisting of $185,000 in combined salary and add-on pay along with another $85,000 in benefits. They are limited to three four-year terms in office.
Under the provisions of Measure K, each supervisor’s total yearly compensation – salary and benefits – was to be reduced to $60,000, and he or she would have been prevented from seeking reelection as supervisor after serving a single four-year term in office.
In promoting Measure K, the Red Brennan Group asserted that the amount of money the supervisors make is roughly four times what the average compensation of county residents is, which renders the county’s political leaders insensitive to the challenges faced by their constituents. Furthermore, according to the Red Brennan Group, the inflated salary and benefits the supervisors are provided has proven a strong incentive for them to remain in office, such that they can and often do solicit and willingly receive huge donations from political donors to provide themselves with political war chests to run the campaigns that would keep them in office. This in turn leads, the Red Brennan Group said, to those politicians’ willingness to trade their votes as board members for those donations, which corrupts the political and governmental process and redounds to the detriment of the county’s residents, even as it enriches those political donors. By radically reducing the pay to the supervisors and preventing them from seeking reelection to the positions they hold, the corrupting influences will be removed and the entrenching of the county’s most powerful elected officials will be rendered impossible, the Red Brennan Group maintained.
A significant number of the county’s voters agreed that the reforms the Red Brennan Group was advocating should be implemented. When Measure K was voted on in the November 2020 election, it 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.
Even before 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, 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, alleged 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 maintained Measure K violates “the single subject rule” pertaining to voter initiatives, such that “Measure K must not be implemented because it does not embrace a single subject.”
The matter was originally slated to go before Judge David Cohn to be adjudicated.
Judge Cohn granted Hertz’s, Sutton’s and Sanders’ motion for a temporary restraining order to halt the implementation of Measure K while the petition for a writ of mandate was being litigated.
As the sponsor of Measure K, the Red Brennan Group sought Judge Cohn’s consent to intervene as a party of standing to respond to the petition for a writ of mandate and defend Measure K and its provisions. The supervisors, maintaining that the issues at stake were limited to a dispute between them and their own clerk, opposed the motion. Judge Cohn, while at first appearing to be disinclined toward granting the Red Brennan Group standing to intervene, ultimately changed his stance and approved the Red Brennan Group’s motion to participate in the discussions relating to the petition. Thereupon, the Red Brennan Group’s attorney, Aaron Burden, immediately followed with a peremptory challenge of Judge Cohn, based on the group’s belief it would not be able to have a fair and impartial trial or hearing before him. The matter was sent to Judge Donald Alvarez for his consideration.
Ultimately, Judge Donald Alvarez found, in a ruling handed down on August 31, that Measure K is unconstitutional and cannot be implemented or enforced.
While Judge Alvarez rejected the supervisors’ argument that only they have the authority to set their pay, he ruled that the single-term limit contained in Measure K violated the U.S. Constitution. He further found that since one element of the measure was deemed unenforceable, the entire initiative had to be thrown out.
Judge Alvarez rejected Hertz’s, Sutton’s and Sanders’ argument that Measure K violates California Constitution Article XI, Section l(b) by using the citizen initiative process to set the supervisors’ pay rate and that the board’s salaries and benefits are a province that falls exclusively under the purview of the supervisors themselves. Alvarez said that because the terms of San Bernardino County’s governance is set by a charter, the board can only propose amendments and revisions to the charter, extending to the supervisors’ pay, and those changes to the charter have to be adopted by voters at an election. Therefore, Judge Alvarez said, the voters through Measure K could reduce the supervisors’ pay and benefits to $60,000 per year.
Nevertheless, Judge Alvarez ruled, there was merit in Hertz’s, Sutton’s and Sanders’ contention that Measure K’s term limit provision for members of the county board of supervisors violates the First and Fourteenth Amendments to the United States Constitution by infringing on voters’ and incumbents’ First and Fourteenth Amendment rights.
In coming to that conclusion, Judge Alvarez reasoned that a single term did not provide “a supervisor sufficient time in the governing body position. Additionally, although an electorate has no constitutional right to vote for a particular candidate, the desire to ensure a candidate seeks to serve the public interest cannot justify then precluding a candidate or electing an incumbent he believes is serving the interest of the voters at least for one or two additional terms of office. And a reasonable remedy exists if the incumbent seeking re-election is not performing competently: the electorate [can] vote for the other candidate.”
Judge Alvarez took up the issue of the severability of the two provisions of Measure K, one being the pay reduction element and the other term limits. The question was whether one of the provisions would still be applicable if the other was not. Judge Alvarez ruled that the Red Brennan Group had “fail[ed] to demonstrate the two provisions are volitionally separable. Nothing is offered that the voters would have voted yes for Measure K if they knew the one-term limit provision would be invalid leading to the measure only covering the board’s compensation. Rather, the two provisions, although grammatically and functionally separate, are intertwined associated with the proponents’ advocacy to the voters for Measure K’s passage. Thus, it cannot be said Measure K would pass if one provision were missing. And without establishing [the provisions are] volitionally separable, severance cannot be obtained.”
Judge Alvarez’s ruling was filed August 31. The Red Brennan Group gave notice it would appeal almost immediately. On September 22, it lodged that challenge with the Fourth District Court of Appeal in Riverside.
The Red Brennan Group is not contesting Judge Alvarez’s finding that Measure K’s provision calling for the reduction in the supervisors’ pay passes constitutional muster and that the charter authorizes the county’s residents to determine what the level of pay the supervisors are to receive. Rather, the nonprofit is taking issue with the judge’s finding that the single term provision of Measure K is unconstitutional and that its unconstitutionality provides the basis to invalidate the measure or invalidate the accompanying compensation reduction contained in the initiative. One of the Red Brennan Group’s legal theories is that in making his finding that a single term limit could not be imposed, Judge Alvarez used language similar to or precisely the same as the arguments that were made against term limits in general that were rejected by the California Supreme Court decades ago in a decision which allowed for California’s current imposition of term limits.
The board of supervisors in response has filed a cross-appeal, one that is diametric to the Red Brennan Group’s. The supervisors do not challenge that Judge Alvarez correctly assessed that citizens do not have the right to limit a politician to a single term in office or that putting such a provision into an initiative invalidates the entire measure. Rather, the county supervisors maintain, Judge Alvarez was in error when he made a finding that citizens have the right to set the rate of remuneration their elected representatives are to receive.
-Mark Gutglueck

Leave a Reply