By Mark Gutglueck
Measure K, which called for a drastic overhaul of county government by reducing the total compensation of county supervisors and limiting them to a single four-year term, is unenforceable despite the county’s voters having passed it by a two-to-one margin in the November 2020 election, a Superior Court Judge ruled this week.
Despite the ruling by Judge Donald Alvarez preventing either of the key provisions in the reform measure from being put into place, there was a silver lining for the Red Brennan Group, the government reform organization that sponsored the initiative, in that Judge Alvarez rejected the contention of the board of supervisors that the county’s voters, at the time the initiative was passed, did not have the authority to reduce their pay. It now remains to be seen whether an alteration of state law that has occurred in the interim will prevent voters from imposing salary and benefit reductions on the supervisors using a revamped referendum.
Unclear is whether the Red Brennan Group will revisit the issue in the form of a stripped down measure in the upcoming election cycle, one that will confine itself to the pay-reduction proposal. Moreover, language in Judge Alvarez’s ruling suggested that a separate measure limiting the supervisors to two terms rather than a single term in office would very likely pass constitutional muster.
The Red Brennan Group qualified Measure K for the ballot, sponsored the campaign for its passage and mounted a legal defense of the measure when the board of supervisors last year sued their own clerk of the board to prevent it from being implemented. The grassroots group’s leadership is now moving toward making an appeal of Judge Alvarez’s ruling, while contemplating whether it will go back to the voters in 2022 with another county government reform initiative or set of initiatives.
The Red Brennan Group pursued placing Measure K on the 2020 ballot, 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. Despite Measure R’s passage, it did not go into effect because a competing “reform” measure that had been placed on the ballot by the board of supervisors, Measure Q, gathered more votes in the 2012 election.
In the last part of 2019 and the first several months of 2020, the Red Brennan Group, a group of government reform activists which had formed following Brennan’s 2013 death and which was named in his honor, acting in conjunction with Nadia Renner, succeeded in gathering 75,132 signatures of county voters to put a reform initiative similar to 2012’s Measure R on the November 2020 ballot. The proposed measure called for reducing the board members to part-time lawmakers, providing them with an annual salary and benefit package of $60,000 and limiting them to a single four-year term on the board. After those signatures and petitions were provided to the San Bernardino County Registrar of Voters in March 2020 and deemed to be sufficient to put an initiative, which was ultimately designated as Measure K, on the November 2020 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 designated by the San Bernardino County Registrar of Voters as Measure J.
Measure J was billed 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 the alternate reform measure that the supervisors had put on the ballot in 2012 had outperformed the measure sponsored by Red Brennan in that election, 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. After the November 2020 election had concluded, expectations were 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, 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 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, 2020 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 was 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 Renner 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 requested 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, 2020 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, 2020 to submit a brief as to why Measure K is to be stayed.
It was 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 of lawyers headed by County Counsel Michelle Blakemore, was obligated 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, did not with alacrity undertake to defend either in court filings or in open court discussion.
The result, the Red Brennan Group maintained, was that “an initiative approved by over 66% of county voters is being ignored by the public servants sworn to protect the voters’ interests.”
On December 14, 2020, Judge Cohn, in accordance with settled law and the Red Brennan Group’s status as the proponent of Measure K, approved the Red Brennan Group’s motion to intervene. He simultaneously found that the Inland Oversight did not have status to intervene in the proceedings.
Thereupon the Red Brennan Group’s attorney, Aaron Burden, immediately followed with a preemptory 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 Alvarez for his consideration.
After the passage of more than nine months and the consideration of a multitude of briefings, Judge Alvarez this week concluded that Measure K should not be implemented.
In his analysis of the county’s case against Measure K, Alvarez noted that board was contesting the two major provisions in Measure K, those being the salary/benefits/total compensation limitation to $60,000 per year and the single four-year term limit on holding the position of county supervisor.
“In challenging the constitutionality and/or validity of the compensation section of Measure K, the board makes two arguments,” Judge Alvarez wrote. “The board argues its compensation cannot be implemented by voter initiative. And the voter initiative intrudes into a matter exclusively delegated to the board.”
Referencing the cases of Voters for Responsible Retirement v. Board of Supervisors and DeVita v. County of Napa, Judge Alvarez noted that the California Supreme Court had stated, “[W]e will presume, absent a clear showing of the legislature’s intent to the contrary, that legislative decisions of a city council or board of supervisors – including local employee compensation decisions – are subject to initiative and referendum” and that “local voters’ right to legislate by initiative is presumed on any subject the local governing body could also legislate, and ‘[i]f doubts can [be] reasonably resolved in favor of the use of [the] reserve initiative power, courts will preserve it.’”
Nevertheless, Judge Alvarez held that “when a county adopts a charter, its provisions are the law of the state and have the force and effect of legislative enactments. He thereupon referenced the decision in the case of Dimon v. County of Los Angeles, by means of the quotation, “Under the ‘home rule’ doctrine, county charter provisions concerning the operation of the county … trump conflicting state laws.”
Thus, while under California law and the California Government Code, Judge Alvarez found, “the governing body of a non-charter county will set forth their compensation by an ordinance, subject to referendums,” San Bernardino County is not a non-charter county, Judge Alvarez noted. Rather, it has a charter it adopted that makes the provisions generally applicable to non-charter county irrelevant, such that “the governing body of a charter county will set forth their compensation within the county’s charter. [San Bernardino] County is a charter county. Thus, its charter sets the board’s compensation.”
Still, Judge Alvarez noted, the initiative process could intrude into the province of setting the supervisors’ compensation, he said, since “constitutionally, a charter may be amended or repealed by the initiative process.”
“Considering all” of the factors bearing upon the issue of whether voters have the ability to set the compensation of the members of the board of supervisors or whether that authority lies with the supervisors themselves, Judge Alvarez ruled “the principal voter initiative power should be upheld” such that “the initiative process may alter the board’s compensation provision. Therefore, (a) as the county’s charter sets the compensation package for the governing body (versus by ordinance), (b) the California Constitution allows voters the power through the initiative process to amend a county charter with no showing the legislature expressly or by a clear intent excluded from the initiative power the right to amend a charter’s provision that sets the governing body’s compensation, and (c) amendments to a county charter is through the election process, the board is incorrect in concluding Measure K’s compensation provision is unconstitutional and/or invalid since it was amended through the initiative power.”
Accordingly, Judge Alvarez stated, “the compensation provision was found valid and constitutional.”
The Red Brennan Group did not fare as well with regard to Measure K’s provision to limit the supervisors to a single term.
Along most lines, Judge Alvarez held, the board of supervisors assertion that Measure K was unconstitutional in that it violated the 1st and 14th amendments of the U.S. Constitution did not hold up. In one respect, however, he concluded Measure K’s reduction of the possible tenure of a supervisor to a mere four years did not pass the reasonableness test, and on that ground, he declared the term limit aspect of the measure as inapplicable.
Judge Alvarez noted that “neither side disputes the right of the electorate to impose term limits on a county’s board of supervisors.”
Judge Alvarez went on to state, “The issue here is whether imposing a one-term limit, i.e., any person may only be elected once to the board for one 4-year term, creates an unreasonable burden on the voters’ right to vote and an incumbent’s right to seek office. As indicated by the board and case law, the rights at issue are the right of the electorate to vote for the candidate of their choice and the right of an incumbent to run for his office again. So the first question is whether such a burden is severe to require the strict scrutiny analysis or not so severe to impose a general balancing test. Per the 9th Circuit [Court of Appeals], the imposition of term limits on state officeholders is a neutral candidacy qualification that a state has the right to impose, and lifetime term limits do not constitute a discriminatory restriction.”
Still Judge Alvarez said, “The issue here is whether imposing a one-term limit, i.e., any person may only be elected once to the board for one 4-year term, creates an unreasonable burden on the voters’ right to vote and an incumbent’s right to seek office. The standard of the inquiry on the restrictive voter law depends on the extent the regulation burdens the 1st and 14th amendments.”
Judge Alvarez said a consideration of the rationale the Red Brennan Group gave for seeking the one-term restriction was relevant to the question.
“Per the proponents of Measure K, the one-term limit is about ensuring the attraction of representatives interested in public service and committed to following the will of the people. Its purpose is to shut out outside interest groups and focus the leaders on doing what is best for the voters,” Judge Alvarez wrote. He then referenced the Red Brennan Group’s promotion of Measure K. “’Measure K will ensure our elected officials are inspired by service to San Bernardino County, not an oversized paycheck or raising money to win their next election,'” he quoted. “So what the court is presented with is balancing the one-term limit imposing a burden on a voter’s right to choose the candidate of his/her choice, i.e., re-elect an incumbent who is performing competently, and an incumbent’s right to seek re-election against the interest of the voters ensuring the members of the Boards are there to serve the public interest, committed to following the will of the people, and not be influenced by interest groups or the need to seek re-election. Under a strict scrutiny analysis, the burden imposed of a one-term limit is not narrowly drawn to meet the interest stated for adopting Measure K. The state interest of stopping an incumbent from being distracted with re-election during his tenure is not stopped by merely limiting him to one term, as the incumbent may then be distracted by seeking election to another office or seeking a job after his term ends. So that stated reason is not justifying precluding the rights of voters and incumbents under the 15th and 14th amendments. Even under a general balancing test, the stated reason is not sufficient to justify imposing the burden precluding an incumbent from seeking re-election.”
Judge Alvarez held that the “Supreme Court recognized a lifetime term limit on state senators and assembly only arose after the incumbent has served a significant period in office. The same cannot be said here. A supervisor will be serving only 4 years versus a senator serving 8 years and assembly member serving 6 years before they are precluded from holding the same position. A one-term limit is not providing 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 vote for the other candidate.”
Judge Alvarez concluded with regard to the term limit provision, “Based on the foregoing, Measure K imposing a lifetime one-term limit imposes a burden that does not reasonably justify the infringement on voters’ and incumbents’ 1st and 14th amendment rights. Therefore, the term limit provision is unconstitutional, invalid, and unenforceable.”
Judge Alvarez also evaluated whether Measure K violated the single-subject rule for initiatives.
“The single-subject rule,” Judge Alvarez wrote, “is not violated ‘if, despite its varied collateral effects, all of [the initiative’s] parts are “reasonably germane” to each other, and to the general purpose or object of the initiative.”
Judge Alvarez found, “Under that stated purpose, it cannot be said the two provisions are distinct. They both are reasonably germane to ensuring the member of the board is about public service versus being paid a high salary or becoming a career politician. Whether this court or the board believes these two provisions will achieve that goal is irrelevant. Therefore, the single-subject rule is not violated.”
Judge Alvarez took up the question that was of significant import with regard to Measure K, that being its severability. Essentially, that question came down to whether, if one element of the measure was deemed to be unconstitutional, the entire measure would be null and void. As his determination was that the term limit provision was unenforceable, Judge Alvarez had to determine whether that meant that the compensation limitation of the measure could not yet be salvaged.
“Measure K contains a severability clause,” Judge Alvarez noted, “Although not conclusive, a severable clause normally will allow for sustaining a part of the enactment while severing the invalid part when mechanically severable.”
Judge Alvarez said, “There are ‘three criteria for severability: the invalid provision must be grammatically, functionally, and volitionally separable.’ Under the above criteria, the deemed unconstitutional term limit provision is grammatically and functionally separable from the compensation provision. The term limit provision is a distinct and separate provision within Measure K that can be removed without affecting the compensation provision’s language. Next, its removal may preclude amending the county’s charter to provide for one-term limits but its non-inclusion in the charter will not affect the implementation of the compensation provision. However, Intervener fails 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 thus determined, “Measure K is not severable.” He ruled therefore to “Grant board’s writ to preclud[e] the implementation of Measure K’s provisions.”
There were no representatives of the members of the board of supervisors available at press time to react to Judge Alvarez’s ruling.
Of some moment at this point, given Judge Alvarez’s ruling, is AB 428, legislation introduced this year by Assemblyman Chad Mayes, who before his election to state office was the chief of staff to Supervisor Janice Rutherford. At Rutherford’s behest, Mayes sponsored AB 428, which prevents term limits on the office of county supervisor from being set at fewer than two terms and allows elected supervisors to set their own pay. While Mayes went on record indicating that the bill was “prospective” and did not apply to term limits currently in place, Alvarez’s ruling preventing Measure K from being implemented would potentially mean that a future measure sponsored by the Red Brennan Group or any other entity or individual limiting supervisors’ pay cannot be put put before the voters or enforced if passed. Consequently, the Red Brennan Group finds itself in the position of now pursuing an appeal of Judge Alvarez’s ruling.
Tom Murphy, the spokesman for the Red Brennan Group, said, “In November 2020, more than two-thirds of San Bernardino County voters approved Measure K. In a rush to protect their own self-interests, and against the clear wishes of the people, the board of supervisors of the County of San Bernardino sued to overturn Measure K. In his final ruling, Judge Alvarez sided with big government. While acknowledging Measure K’s proponents had the core legal argument correct, Judge Alvarez opted to reach far afield to justify handing a loss to San Bernardino County residents. We will appeal this decision and expect to win on appeal.”