Agenda, first session — Indian Wells City Council, January 18, 2024 (part 3 of 3)

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

supervisor to be effective — i.e., that it
is a “significant period in office.” If it
is not enough time in San Bernardino
County — if a San Bernardino County
Supervisor does not take off the
training wheels until his or her second
term in office — that is, at best, a local
inefficiency. (In fact, arguably it shows
a need for term limits, to spur
efficiency.) When balanced against the
voters’ right to the initiative as well as
the state’s legitimate interests in term
limits (see part IV.C.2.b), it is entitled
to little weight.

Third, Measure K does not count
unexpired terms, if they have less than
two years still to run. That is not so
very different from the term limits in
Eu, which did not count unexpired
terms at all (except that it did count
them *1273 against “some incumbent
Senators”). (Eu, supra, 54 Cal.3d at
p. 518, 286 Cal.Rptr. 283, 816 P.2d
1309.) The fact that in Eu, terms
begun by some incumbent Senators did
count demonstrates that Eu did not
view this factor as dispositive.

b. The interests asserted by the state as
justifications for the injury.

Eu acknowledged that the state has a
legitimate interest in term limits: “
‘The universal authority is that
restriction upon the succession of
incumbents serves a rational public
policy and that, while restrictions
**180 may deny qualified men an
opportunity to serve, as a general rule
the over-all health of the body politic is
enhanced by limitations on continuous
tenure. [Citations and fn. omitted].’ ”
(Eu, supra, 54 Cal.3d at p. 520, 286
Cal.Rptr. 283, 816 P.2d 1309.) It
indicated that this interest was
sufficiently compelling for the term
limits there to survive even strict
scrutiny. (Id. at p. 524, 286 Cal.Rptr.
283, 816 P.2d 1309.)

Bates agreed that the state has an
interest in term limits: “Long-term
entrenched legislators may obtain
excessive power which, in turn, may
discourage other qualified candidates
from running for office or may provide
the incumbent with an unfair advantage
in winning reelection.” (Bates,
supra, 131 F.3d at p. 847.)

The trial court reasoned that “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.” These
arguments, however, apply to a two-or
three-term limit just as much as to a
one-term limit; essentially, they are
arguments against having any term
limits at all. As we know from Eu,
however, term limits imposed by
initiative are presumptively valid. The
trial court was not entitled to
second-guess the voters’ position on

Page 288 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

these policy issues.

[12]The Board argues that “Renner
raises a purported government interest
by merely citing the language of Eu
and provides no evidence that this
interest is relevant to San Bernardino
County.” Eu held, however, that
such evidence is not required. (Eu,
supra, 54 Cal.3d at p. 523, 286
Cal.Rptr. 283, 816 P.2d 1309.) “[W]e
[do not] require elaborate, empirical
verification of the weightiness of the
State’s asserted justifications.
[Citation.]” (Timmons v. Twin Cities
Area New Party (1997) 520 U.S. 351,
364, 117 S.Ct. 1364, 137 L.Ed.2d 589.)

c. The necessity for imposing the
burden.

When the problem is personal
empire-building by entrenched
incumbents, the only solution is term
limits. As Eu said, “Realistically,
only a *1274 lifetime ban could protect
against various kinds of continued
exploitation of the ‘advantages of
incumbency’ captured through past
terms in office.” (Eu, supra, 54
Cal.3d at p. 524, 286 Cal.Rptr. 283,
816 P.2d 1309.)

The Board argues that the preexisting
three-term limit was adequate and “a
far less drastic alternative” to a
one-term limit. The voters, however,
were presented with the choice
between Measure J, which would have
kept the three-term limit, and Measure
K’s one-term limit; they
overwhelmingly preferred Measure K.

The ballot arguments in favor of
Measure K said, among other things:
“Voting YES for term limits and
reduced salaries will finally attract
representatives interested in public
service and committed to following the
will of the people.” “Obligated to
financial backers for reelection, the
Board of Supervisors has chosen to
ignore voters and their rights.” “A
single four-year term will help shut out
... outside interests and focus our
leaders on doing what’s best for us all.”
“Measure K will ensure our elected
officials are inspired by service to San
Bernardino County residents, not an
oversized paycheck or raising money to
win their next election.”5

**181 It was important to the
electorate, then, to ensure that
supervisors could not be either
distracted or compromised by the
prospect of a future term. A three-term
limit could never accomplish this goal.

A one-term limit was the only
alternative.

D. Conclusion.

In sum, in the words of Burdick, the
one-term limit here is a “ ‘reasonable,
nondiscriminatory restriction[ ],’ and
therefore “ ‘the State’s important
regulatory interests are ... sufficient to

Page 289 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

justify’ ” it. (Burdick, supra, 504
U.S. at p. 434, 112 S.Ct. 2059.)

THE COMPENSATION LIMIT
The trial court also ruled that the
compensation limit was valid and
constitutional. In its cross-appeal, the
Board contends that this was error, for
three reasons.

*1275 A. Exclusive Delegation.

First, the Board contends that
supervisors’ compensation cannot be
set by initiative, because state law
delegates the power to set supervisors’
compensation exclusively to a county’s
governing body.

The trial court rejected this contention;
it found “no clear indication that the
Legislature intended the governing
body to exclusively hold the right to set
their salary within the charter and
exclude the use of the initiative power
to amend the charter associated with
the governing body’s compensation.”
We agree.

1. Analysis under the California
Constitution.

California has two kinds of counties:
charter counties and general law
counties. (Cal. Const., art. XI, § 3,
subd. (a); Roe v. County of Lake
(N.D. Cal. 2000) 107 F.Supp.2d 1146,
1148.) San Bernardino is a charter
county. (S.B. County Charter; Stats.
1913, ch. 33.)

[13] [14] [15]Article XI, section 3,
subdivision (a) (section 3(a)) of the
Constitution states, “County charters ...
shall supersede ... all laws inconsistent
therewith. The provisions of a charter
are the law of the State and have the
force and effect of legislative
enactments.” (Cal. Const., art. XI, § 3,
subd. (a).) Thus, section 3(a) grants a
charter county “ ‘home rule,’ i.e., the
authority of the people to create and
operate their own local government and
define the powers of that government,
within the limits set out by the
Constitution. [Citation.]” (Dibb v.

County of San Diego (1994) 8 Cal.4th
1200, 1206, 36 Cal.Rptr.2d 55, 884
P.2d 1003.)6

**182 [16]Despite the seeming breadth
of section 3(a), a county charter
supersedes state law only when the
county is legislating in its proper
sphere. Hence, “charter provisions
cannot control in matters of statewide
concern where the state has occupied
the field.” ( *1276 Wilson v. Beville
(1957) 47 Cal.2d 852, 859, 306 P.2d
789; accord, American Financial
Services Assn. v. City of Oakland

Page 290 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

(2005) 34 Cal.4th 1239, 1251, 23
Cal.Rptr.3d 453, 104 P.3d 813.)

Article XI, section 1, subdivision (b) of
the California Constitution (section
1(b)) provides, “[E]ach governing body
[of a county] shall prescribe by
ordinance the compensation of its
members ....” However, section 1(b)
expressly applies only “[e]xcept as
provided in subdivision (b) of Section
4 of this article ....” (Ibid.) And Article
XI, section 4, subdivision (b) says that
a county charter must provide for
“[t]he compensation ... of members of
the governing body.” (Cal. Const., art.

XI, § 4, subd. (b) (section 4(b)).)

[17] [18]In other words, in a general law
county, the “governing body” must set
its members’ compensation. By
contrast, in a charter county, the county
charter may provide the method of
setting the compensation of members
of the governing body; the governing
body has no power to set the
compensation of its members, unless
the county charter so provides. (See
Brown v. Francisco (1954) 123
Cal.App.2d 413, 417, 266 P.2d 951
[county charter may fix supervisors’
compensation or may allow supervisors
to do so].) Last but not least, the voters
have the right to amend a county
charter by initiative. (Cal. Const., art.

XI, § 3, subds. (a), (b).) It follows that
the voters in a charter county may set
supervisors’ compensation by an
initiative that amends the county
charter.

The Board asserts: “[T]he California
Constitution is silent regarding whether
citizen initiatives may initially set
supervisor compensation in charter
counties.” “Where the Constitution is
silent as to a charter county’s authority
to engage in a legislative act, courts
defer to the legislature ....” As just
discussed, however, the state
Constitution is far from silent on this
point. Indeed, it could hardly be
clearer.

Jahr v. Casebeer (1999) 70
Cal.App.4th 1250, 83 Cal.Rptr.2d 172
(Jahr) held that, under section 1(b),
supervisors’ compensation cannot be
set by initiative. (Id. at pp.
1254-1260, 83 Cal.Rptr.2d 172.)
Meldrim v. Board of Supervisors
(1976) 57 Cal.App.3d 341, 127
Cal.Rptr. 52 (Meldrim) is in accord.
(Id. at pp. 343-344, 127 Cal.Rptr.

52.) Jahr, however, involved Shasta
County (Jahr, supra, at pp.
1252-1253, 83 Cal.Rptr.2d 172), a
general law county. (California State
Association of Counties, County
Structure & Powers, available at
https://www.counties.org/general-info
rmation/county-structure-0> [as of May
3, 2023].) And Meldrim involved
Contra Costa County, which, as the
court there observed, is also a general
law county. (Meldrim, supra, 57
Cal.App.3d at p. 343, 127 Cal.Rptr.

52.) Meldrim even acknowledged
that “the State Constitution ... gives
charter counties the right to set the
salaries of their supervisors.
[Citation.]” (Id. at pp. 343-344, 127
Cal.Rptr. 52.)

Page 291 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

Admittedly, Jahr stated flatly that
“the process through which supervisor
salaries are established is a matter of
statewide concern.” ( *1277 Jahr,
supra, 70 Cal.App.4th at p. 1259, 83
Cal.Rptr.2d 172.) Because Jahr
involved a general law county,
however, the court was not called upon
to decide any issue regarding a charter
county. If this statement in Jahr
applied to a charter county, it would
conflict with section 4(b), which leaves
it up to a charter county to decide how
to set supervisors’ compensation, as
well as with the broad home rule that
section 3(a) confers on charter
counties. **183 It is perfectly
consistent to say that supervisor
compensation may be a statewide
concern in general law counties, but it
is a local concern in charter counties
exercising their constitutional right to
home rule.

2. Analysis under Government Code
section 25300.

The Board relies on Government
Code section 25300 (section 25300)
— particularly as it was amended,
while this appeal was pending, by AB
428.

When the trial court ruled, section
25300 provided, “The board of
supervisors shall prescribe the
compensation of all county officers ....”
(Former § 25300, Stats. 1974, ch.
661, § 2, p. 1523.) As the trial court
recognized, however, “officers of a
county” is defined as including the
members of a board of supervisors.
(Gov. Code, § 24000, subd. (o).)

Section 25300 now specifically
provides: “The board of supervisors
shall prescribe the compensation of all
county officers, including the board of
supervisors ....” (Italics added.)

[19]The Board argues that this
constitutes an “exclusive delegation” of
the power to set supervisors’
compensation. “[T]he local electorate’s
right to initiative ... is generally
co-extensive with the legislative power
of the local governing body.
[Citation.]” (DeVita v. County of
Napa (1995) 9 Cal.4th 763, 775, 38
Cal.Rptr.2d 699, 889 P.2d 1019.)
However, “[t]he presumption in favor
of the right of initiative is rebuttable
upon a definite indication that the
Legislature, as part of the exercise of
its power to preempt all local
legislation in matters of statewide
concern, has intended to restrict that
right. [Citations.]” (Id. at p. 776, 38
Cal.Rptr.2d 699, 889 P.2d 1019.)

The Board’s argument assumes,
however, that section 25300 applies
to charter counties. It does not, for
three reasons.

First, section 4(b) says that a county
charter must provide for “[t]he
compensation ... of members of the
governing body.” Thus, if section
25300 purported to apply to a charter

Page 292 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

county, it would be unconstitutional.

This is true even if setting supervisors’
salaries is a statewide matter, and
hence even *1278 if the county
charter does not supersede section
25300. The Constitution itself
supersedes section 25300 directly.

Second, section 25300 does not
actually purport to apply to a charter
county (except when the charter allows
the board of supervisors to set the
compensation of its own members).

The second sentence of section
25300 adds, “Except as otherwise
required by Section ... 4 of Article XI
of the California Constitution, such
action may be taken by resolution of
the board of supervisors as well as by
ordinance.” And section 4 of article XI
does require otherwise; in a charter
county, it requires that the county
charter provide for supervisors’
compensation.

[20] [21]Admittedly, the first sentence of
section 25300 — “The board of
supervisors shall prescribe the
compensation of ... the board of
supervisors” — does not have any
similar exclusion. Nevertheless, it is
“our duty to read the elements of the
statute together, harmonizing and
giving effect to them all. [Citations.]”
(Hampton v. County of San Diego
(2015) 62 Cal.4th 340, 351, 195
Cal.Rptr.3d 773, 362 P.3d 417.) Both
the first and second sentences must be
read as qualified by the second. Even
assuming the first sentence gives a
charter county board of supervisors the
power to set their own compensation,
the second takes it away by forbidding
them to do it either by ordinance or by
resolution. The principle “that courts
should, if reasonably **184 possible,
construe a statute ‘in a manner that
avoids any doubt about its
[constitutional] validity [citations]’
[citations]” supports this interpretation.
(Kleffman v. Vonage Holdings Corp.
(2010) 49 Cal.4th 334, 346, 110
Cal.Rptr.3d 628, 232 P.3d 625,
brackets in original)

Third, the legislative history of AB 428
demonstrates that the Legislature did
not intend section 25300 to apply to
a charter county. Admittedly, the
author of the bill stated: “ “[I]t is the
Legislature’s duty to ensure that our
local governments, whether established
through general law or charter, are
equipped with the tools needed to
properly administer the heavy burdens
we place upon them.... We must clarify
existing law to allow for County
Supervisors to obtain reasonable
compensation ....” (Assem. Com. on
Elections, Analysis of Assem. Bill No.
428, supra, at p. 2, italics added.)

Other voices, however, soon chimed in.

A Senate committee bill analysis
stated: “Consistent with existing law,
AB 428 reiterates that members of the
board of supervisors are county officers
for which the board must set
compensation. However, because the
California Constitution says that
charters must provide for the
compensation of the board, charters
that set compensation trump state law.

Accordingly, while AB 428 may

Page 293 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

clarify matters for general law
counties, it is unclear that it materially
*1279 changes how compensation is
set in charter counties that have charter
provisions setting a specific
compensation level for members of the
board.” (Sen. Com. on Gov. & Fin.,
Analysis of Assem. Bill No. 428
(2021-2022 Reg. Sess.), as amended
Mar. 18, 2021, p. 4, italics added.)

A bill analysis by another committee
concurred: “Supervisor Compensation
in Charter Counties. AB 428 would
clarify, in Government Code Section
25300, that the ‘county officers’ for
which the board of supervisors sets
compensation includes the board itself.

This amendment is consistent, as to
general law counties, with provisions
of the California Constitution requiring
each county governing body to set the
compensation of its members.

However, this clarification may not
apply to all charter counties, because
the California Constitution specifies, as
an exception to the general rule of
county governing bodies setting their
own compensation, that a county
charter must provide for the
compensation of the board, and some
county charters do not give the board
discretion to set its own compensation.

Accordingly, while AB 428 may
clarify matters for general law
counties, it is unclear that it materially
changes how compensation is set in
charter counties that have charter
provisions setting a specific
compensation level for members of the
board.” (Sen. Com. on Elections and
Const. Amends., Analysis of Assem.

Bill No. 428 (2021-2022 Reg. Sess.),
as amended Mar. 18, 2021, p. 6, italics
added.)

The Board notes that the Howard Jarvis
Taxpayers Association (Jarvis
Association) opposed AB 428. The
Jarvis Association argued: “ ‘AB 428
seeks to undo the overwhelming
approval of Measure K in San
Bernardino County that amended the
County Charter to impose a term limit
of one term and reduced the total
compensation for each member of the
Board of Supervisors to $5,000 per
month.” (Assem. Com. on Elections,
Analysis of Assem. Bill No. 428,
supra, at p. 4.) The Board concludes
that “the Legislature contemplated that
the passage of AB 428 would ‘undo’
Measure K.”

Actually, in the face of the Jarvis
Association’s comment (Assem. Com.
on Elections, Analysis of Assem. Bill
No. 428, supra, at p. 1), the author of
AB 428 “indicated that the intent of
this bill is not **185 to overturn
Measure K.” (Id. at p. 3, italics added.)

The Senate Committee on Governance
and Finance observed that the effect of
AB 428 on Measure K was not clear; it
expressed concern about “thwarting the
will of the voters.” (Sen. Com. on Gov.
& Fin., Analysis of Assem. Bill No.
428, supra, at p. 4.) In response to this
“potential legal ambiguity,” AB 428
was amended so as to provide
expressly that it “shall not affect any
term limits that were legally in effect
prior to January 1, *1280 2022 ....”

Page 294 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

(Sen. Com. on Elections and Const.

Amends., Analysis of Assem. Bill No.
428, supra, at pp. 5-6.) There was no
need to amend its compensation limit,
because, as already discussed, the
Legislature knew it most likely did not
apply to a charter county.

Plainly, then, the Legislature did not
contemplate that AB 428 would undo
Measure K. To the contrary, it agreed
with the Jarvis Association that the
unamended version threatened Measure
K, and thus it amended AB 428 so as to
let Measure K stand.

In sum, then, the author of AB 428
may have intended it to apply to charter
counties. The Legislature as a whole,
however, was made aware that
section 25300 — both before and
after AB 428 — most likely did not
and could not apply to charter counties.

B. Minimum Wage Laws.
[22]Second, the Board contends that the
compensation limit violates federal and
state minimum wage laws.

The trial court rejected this contention
based on lack of evidence. It ruled:
“Even though it is implied the Board
may be paid less than minimum wage
after deduction of all benefits, such
contention is not demonstrated. It is
based on speculation.” Again, we
agree.

Measure K’s compensation limit is
$5,000 a month. The Board points out
that the minimum wage of $15 an hour
for 40 hours a week works out to
$2,600 a month. It adds, “[F]ederal law
requires that the County match a
Medicare tax at 1.45 percent of the
supervisor’s salary, and state and local
pension laws require that the County
match each supervisor’s pension
contribution at 17.54 percent of the
supervisor’s salary. These benefits
alone require a minimum of $493.74.

When adding in other legally mandated
benefits such as worker’s
compensation premiums, travel
reimbursement7 and disability
insurance, among others, ... Measure
K’s terms immediately risk requiring
that the County violate California’s
minimum wage law.”

[23]It must be remembered that this
action is a challenge to Measure K on
its face. “On a facial challenge, we will
not invalidate a statute unless it
‘pose[s] a present total and fatal
conflict with applicable constitutional
*1281 prohibitions.’ [Citations.] ...
‘[P]etitioners cannot prevail by
suggesting that in some future
hypothetical situation constitutional
problems may possibly arise as to the
particular application of the statute.’
[Citation.]” (California School
Boards Assn. v. State of California
(2019) 8 Cal.5th 713, 723-724, 256
Cal.Rptr.3d 590, 454 P.3d 962.)

The Board’s evidence fails to establish
that Measure K will necessarily violate
superseding federal and state law.

Page 295 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

Indeed, as the Board itself says, “it is
presently **186 impossible to
determine whether the County will be
in violation of the law ....” It
hypothesizes a future increase of the
minimum wage to $20 an hour, and
even then it says only that “a
supervisor’s compensation would be a
minimum of $4,125 — a number which
does not include the numerous other
required benefit payments under state
and federal law.” We cannot invalidate
Measure K on such hypothetical
grounds.

In a subsidiary contention, the Board
argues that, if the county could comply
with minimum wage laws by having
supervisors work part-time, that would
impair essential government functions.

Again, however, this is a purely
hypothetical argument that we cannot
reach in this appeal.

C. San Bernardino County Code
section 13.0614.
[24]Third, the Board contends that the
compensation limit improperly
overturns San Bernardino County Code
section 13.0614 (section 13.0614)
without a referendum.

[25]The Board did not raise this
argument below. Nevertheless,
“[g]enerally, on appeal, a judgment or
order will be affirmed if it is correct on
any theory, regardless of the trial
court’s reasons; thus, a respondent may
assert a new theory to establish that an
order was correct on that theory ‘unless
doing so would unfairly prejudice
appellant by depriving him or her of
the opportunity to litigate an issue of
fact.’ [Citation.]” (Bailon v. Superior
Court (2002) 98 Cal.App.4th 1331,
1339, 99 Cal.App.4th 815I, 120
Cal.Rptr.2d 360.) The Board’s
argument is purely legal.

Section 13.0614 is a lengthy ordinance
governing the compensation of elected
county officials. It requires that
supervisors be provided with certain
benefits, including retirement benefits,
medical, dental, and vision insurance,
life insurance, long-term disability
insurance, a cell phone allowance,
health club membership, an annual
physical examination, tuition
reimbursement, and membership dues.8
(§ 13.0614, subd. (c).)

*1282 The Board asserts that “Measure
K renders it impossible for supervisors
to be paid the amounts [section

13.0614] requires.” Once again,
however (see part IV.B, ante), this is
speculation; there is no evidence of
this.

Separately and alternatively, even
assuming the Board’s assertion is true,
Measure K is part of the county
charter; section 13.0614 is a mere
county ordinance. Accordingly, to the
extent that they conflict, section

13.0614 is invalid. (See City and
County of San Francisco v. Cooper
(1975) 13 Cal.3d 898, 923-924, 120
Cal.Rptr. 707, 534 P.2d 403.)

Page 296 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

The Board implicitly recognizes this
principle. It therefore argues that the
voters cannot invalidate an ordinance
by initiative rather than by referendum.

It cites article XI, section 1,
subdivision (b) of the California
Constitution, which, as relevant here,
provides: “Except as provided in
subdivision (b) of Section 4 of this
article, each governing body shall
prescribe by ordinance **187 the
compensation of its members, but the
ordinance prescribing such
compensation shall be subject to
referendum.” Again, however (see part
III, ante), section 3(b) and section 4(b),
taken together, give the voters in a
charter county the power to amend a
charter by initiative, so no referendum
is needed.

VI***
Unpublished Text Follows

THE SINGLE-SUBJECT RULE
The Board contends that Measure K,
by combining the one-term limit and
the compensation limit, violates the
single-subject rule.

The trial court rejected this contention.

It ruled that both provisions were
“reasonably germane to ensuring the
member of the Board is about public
service versus being paid a high salary
or becoming a career politician.”

Under the California Constitution,
“[a]n initiative measure embracing
more than one subject may not be
submitted to the electors or have any
effect.” (Cal. Const., art. II, § 8, subd.
(d).) “This rule applies to local as well
as statewide initiatives. [Citation.]”
(Shea Homes Limited Partnership
v. County of Alameda (2003) 110
Cal.App.4th 1246, 1255.)

“ ‘[The California Supreme Court has]
upheld a variety of initiative measures
in the face of a single-subject
challenge, emphasizing that the
initiative process occupies an important
and favored status in the California
constitutional scheme and that the
single-subject requirement should not
be interpreted in an unduly narrow or
restrictive fashion that would preclude
the use of the initiative process to
accomplish comprehensive,
broad-based reform in a particular area
of public concern. [Citations.]’
[Citation.]

“ ‘[T]he single-subject provision does
not require that each of the provisions
of a measure effectively interlock in a
functional relationship. [Citation.] It is
enough that the various provisions are
reasonably related to a common theme
or purpose.’ [Citation.] Accordingly,
[the Supreme Court has] upheld
initiative measures ‘ “which fairly
disclose a reasonable and common
sense relationship among their various

Page 297 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

components in furtherance of a
common purpose.” [Citation.]’
[Citations.] The governing principle is
that ‘ “ ‘[a]n initiative measure does
not violate the single-subject
requirement if, despite its varied
collateral effects, all of its parts are
“reasonably germane” to each other,’
and to the general purpose or object of
the initiative. [Citations.]” ’ [Citation.]
The ‘reasonably germane’ standard is
applied ‘in an accommodating and
lenient manner so as not to unduly
restrict ... the people’s right to package
provisions in a single bill or initiative.’
[Citations.]” (Briggs v. Brown (2017) 3
Cal.5th 808, 828-829.)

The Board does not attack the trial
court’s ruling that both provisions of
Measure K are reasonably germane to
ensuring that Board members are
devoted to public service. Instead, it
argues only that, if Measure K is
severable, then it necessarily concerns
more than one subject. It provides no
authority for this argument. The test
under the single-subject rule (all
provisions must be “reasonably
germane” to each other) is very
different from the test for severability
(“ ‘[t]he invalid provision must be
grammatically, functionally, and
volitionally separable”). (California
Redevelopment Assn. v. Matosantos
(2011) 53 Cal.4th 231, 271.)

We need not decide this issue. The trial
court ruled that Measure K is not
severable. The Board agrees. Because
we are upholding both the one-term
term limit and the compensation limit,
there is no need for us to decide
whether Measure K is severable. And
because the Board is not contending
that Measure K is severable, we need
not decide whether, if it were
severable, it would violate the
single-subject rule.

End of Unpublished Text

VII

APPLICATION OF MEASURE K TO

THE NEW SUPERVISORS
Renner contends that the trial court
erred by ruling that Measure K did not
apply to the newly elected supervisors.

This depends, in part, on when the new
supervisors took office and on when
Measure K went into effect. Renner
and the Board disagree on both points.

*1283 A. When Did the New
Supervisors Take Office?
[26]Under both the old county charter
and Measure J, the new supervisors’
terms were to begin on the first
Monday in December, which in 2020
was December 7.9 Accordingly, on
December 7, 2020, the new supervisors
were sworn in. The trial court ruled
that, pursuant to the county charter, the
new supervisors’ terms did, in fact,
begin on December 7, 2020.

Page 298 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

Renner relies on article II, section 20 of
the California Constitution, which
provides: “Terms of elective offices
provided for by this Constitution, other
than Members of the Legislature,
commence on the Monday after
January 1 following election.” Our
Supreme Court, however, has held that
this governs only state elective offices,
not local elective offices. (In re Stuart
(1879) 53 Cal. 745, 748 (Stuart);
accord, Barton v. Kalloch (1880) 56
Cal. 95, 104-105.)

Stuart noted that “State officers, such
as the Governor and the other officers
who constitute the Executive
Department of the State Government ...
are officers whose election is
absolutely provided for by the
Constitution itself.” (Stuart, supra, 53
Cal. at p. 748.) It then relied on former
article XI, section 5, of the California
Constitution, which allowed the
Legislature to “fix the[ ] terms of
office” of “county ... and municipal
officers ....” (Stuart, supra, at p. 748.)

Renner argues, however, that Stuart is
no longer good law. She claims that,
when Stuart was decided, the only
officers whose election was “provided
for by th[e] Constitution” were state
officers; since then, however, the
Constitution has been amended to
provide for county supervisors. Not so.

In the original 1879 Constitution,
article V, section 2 provided: “The
Governor shall be elected by the
qualified electors at the time and places
of voting for members of the
Assembly, and shall hold his office
four years from and after the first
Monday after the first day of January
subsequent to his election ....” (Italics
added.)

By contrast, article XI, section 5 of the
Constitution, on which Stuart relied,
said: “The Legislature ... shall provide
for the election or appointment, in the
several counties, of Boards of
Supervisors ... and shall ... fix their
terms of office.” (Italics added.) Thus,
Stuart drew a distinction between state
officers like the governor, “whose
election is absolutely provided for by
the Constitution itself,” and county
supervisors, whose election and terms
were **188 to be provided for by the
Legislature. (Stuart, supra, 53 Cal. at p.
748.)

*1284 Similarly, the Constitution now
states: “The Governor shall be elected
every fourth year at the same time and
places as members of the Assembly
and hold office from the Monday after
January 1 ....” (Cal. Const., art. V, § 2,
italics added.) It also states: “The
Legislature shall provide for ... an
elected governing body in each
county.” (Cal. Const., art XI, § 1, subd.
(b), italics added.) Moreover, it
provides that, in a charter county, the
charter is to provide for “[t]he ... terms
... of members of the governing body.”
(Cal. Const., art XI, § 4, subd. (b).)
Thus, Stuart’s reasoning is still sound
— at least as to a charter county, the
Legislature is to provide for the
election of supervisors, and the county

Page 299 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

charter is to provide for their terms.

Article II, section 20 still does not
apply.

We also note that, in several charter
counties, supervisors do not take office
on the Monday after January 1. Los
Angeles County provides by charter for
supervisors’ terms to begin on the first
Monday in December. (L.A. County
Charter, art. II, § 6.) Sacramento and
Santa Clara Counties provide for them
to begin on the first Monday in
January. (Sac. County Charter, art. IV,
§ 9; Santa Clara County Charter, art. II,
§ 202.) Likewise, San Francisco
provides for them to begin on January

8. (S.F. Charter, § 2.101.) This reflects
a general understanding that a charter
county can choose its own date.

Thus, we agree with the trial court that
the new supervisors took office on
December 7, 2020.

B. When Did Measure K Go into
Effect?
[27]Measure K itself provided: “To the
extent permitted by law, the provisions
of this Charter Amendment shall be
effective on voter approval of the
initiative as provided by California
law.” The introductory clause — “[t]o
the extent provided by law” — seems
to indicate that it was not intended to
override any statutory and
constitutional provisions that may
apply. We need not decide this,
however, because Renner does not
argue that Measure K became effective
immediately. We deem that argument
forfeited.

The parties have cited multiple statutes
that they claim govern when a charter
amendment goes into effect.

First, Renner cites Article II, section
10, subdivision (a) of the California
Constitution, which provides: “An
initiative statute ... approved by a
majority of votes cast thereon takes
effect on the fifth day after the
Secretary of State files the statement of
the vote for the election at which the
measure is voted on ....”

[28]Case law establishes that Article
II, section 10, subdivision (a) of the
Constitution applies only to statewide
initiatives; local initiatives are
governed by a parallel statutory
scheme, which includes *1285
Elections Code section 9122. (Howard
Jarvis Taxpayers Association v. City
and County of San Francisco (2021) 60
Cal.App.5th 227, 239, 274 Cal.Rptr.3d
432; City and County of San
Francisco v. All Persons Interested in
Matter of Proposition C (2020) 51
Cal.App.5th 703, 709-710 & 710, fn. 2,
265 Cal.Rptr.3d 437.)

Government Code section 23723
provides: “[A] proposed [charter10]
amendment ... shall not take effect until
accepted and filed by the Secretary of
State ....” (Gov. Code, § 23723; see
also id., **189 § 23724.) The trial
court ruled that this was the controlling

Page 300 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

provision.11

However, Elections Code section 9102
provides: “Any proposal to ... amend ...
a county charter by initiative petition ...
shall be subject to this article.”
Elections Code section 9122 — part of
the same article — then provides: “If a
majority of the voters voting on a
proposed ordinance vote in its favor,
the ordinance shall become a valid and
binding ordinance of the county. The
ordinance shall be considered as
adopted upon the date the vote is
declared by the board of supervisors,
and shall go into effect 10 days after
that date.”

There is an inescapable conflict
between Elections Code sections 9102
and 9122, on one hand, and
Government Code section 23723, on
the other. They are “ ‘irreconcilable,
clearly repugnant, and so inconsistent
that the two cannot have concurrent
operation.’ [Citation.]” (See Lopez
v. Sony Electronics, Inc. (2018) 5
Cal.5th 627, 637, 234 Cal.Rptr.3d 856,
420 P.3d 767, internal quotation marks
omitted.)

[29]The Board plumps for Government
Code section 23723. It cites Board
of Supervisors v. McMahon (1990) 219
Cal.App.3d 286, 268 Cal.Rptr. 219
(McMahon), which remarked that
the county charter amendment in that
case “became effective ... when the
Secretary of State accepted and filed it.
(See Gov. Code § 23723.)” (Id. at p.
292, 268 Cal.Rptr. 219.) McMahon,
however, was decided in March 1990;
as we will discuss in (perhaps
excruciating) detail momentarily, the
statutory predecessors of Elections
Code sections 9102 and 9122 did not
become effective until September
1990. In any event, there was no issue
in McMahon as to the precise date
on which the charter amendment there
became effective. “It is axiomatic that
cases are not authority for propositions
that are not considered. [Citation.]” (
*1286 California Building Industry
Assn. v. State Water Resources Control
Bd. (2018) 4 Cal.5th 1032, 1043, 232
Cal.Rptr.3d 64, 416 P.3d 53.)

[30]“ ‘If conflicting statutes cannot be
reconciled, later enactments supersede
earlier ones [citation], and more
specific provisions take precedence
over more general ones [citation].’
[Citation.] But when these two rules
are in conflict, the rule that specific
provisions take precedence over more
general ones trumps the rule that
later-enacted statutes have precedence.
[Citations.]” (State Dept. of Public
Health v. Superior Court (2015) 60
Cal.4th 940, 960-961, 184 Cal.Rptr.3d
60, 342 P.3d 1217.)

We cannot say that either set of statutes
is more specific than the other.

Arguably, Elections Code section
9122, standing alone, is more general
than Government Code section 23723,
because it applies to initiative county
ordinances as well as initiative county
charter amendments. However,
Elections Code section 9102 very
specifically makes Elections Code
section 9122 applicable to initiative

Page 301 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

county charter amendments.

We turn, then, to which set of statutes
was enacted latest.

Government Code section 23723 was
enacted in 1969 (Stats. 1969, ch. 1264,
§ 1, p. 2470) and most recently
amended in 1975. (Stats. 1975, ch. 238,
§ 10, p. 627.)

**190 Elections Code sections 9102
and 9122 were both enacted in 1994.
(Stats. 1994, ch. 920, § 2, pp.
4690-5208.)

Elections Code section 9122 replaced
Elections Code former section 3716
(Stats. 1994, ch. 920, § 2, p. 5168),
enacted in 1976. (Stats. 1976, ch. 248,
§ 3, p. 503.) That, in turn, replaced
Elections Code former section 3717,
enacted in 1961. (Stats. 1961, ch. 23, §
3717, p. 632.) That replaced Elections
Code former section 1617, enacted in
1939. (Stats. 1939, ch. 26, p. 632.) And
that replaced former Political Code
section 4058, enacted in 1911. (Stats.
1911, ch. 342, § 1, pp. 577-580.)

The most recent three of these were all
identically worded; the 1911 original
had more verbiage, but it was identical
in all relevant respects. Thus, like
current Elections Code section 9122,
all of its statutory predecessors were
worded in terms of an initiative county
“ordinance.” Standing alone, they did
not purport to apply to an initiative
amendment to a county charter.

Meanwhile, Elections Code section
9102 replaced Elections Code former
section 3701.5, enacted in 1990 (Stats.
1990, ch. 1161, § 12, p. 4864) and
effective on September 21, 1990.
(Stats. 1990, ch. 1161, § 32, pp. 4857,
4870.) *1287 Again, the wording of
Elections Code former section 3701.5
was identical to current Elections Code
section 9102.

Crucially, before 1990, there was no
statute (like Elections Code section
9102) making an initiative county
charter amendment subject to Elections
Code section 9122 or any of its
statutory predecessors.

It follows that Elections Code sections
9102 and 9122, taken together, must be
regarded as enacted in 1990. (Gov.

Code, § 9605, subd. (a).) Thus, they
superseded Government Code section
23723. And thus, under Elections Code
sections 9102 and 9122, Measure K
went into effect 10 days after the vote
was declared by the Board — namely,
on December 18, 2020.

C. Is Measure K Impermissibly
Retroactive If It Applies to the New
Supervisors?
[31]As we have just held, the new
supervisors took office on December 7,
2020 (see part VI.A, ante), and
Measure K went into effect on
December 18, 2020 (see part VI.B,
ante). The Board contends that, if
Measure K applies to the new

Page 302 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

supervisors, it is retroactive in violation
of Government Code section 25000,
subdivision (b).

Government Code section 25000,
subdivision (b), provides: “Any
proposal to limit the number of terms a
member of the board of supervisors
may serve on the board of supervisors
shall apply prospectively only.” This
language was not added by AB 428; it
was enacted in 1995. (Stats. 1995, ch.
432, § 4, pp. 3407-3408.)

[32]Even aside from Government Code
section 25000, “statutes do not operate
retrospectively unless the Legislature
plainly indicates otherwise. [Citation.]”
(In re S.B. (2004) 32 Cal.4th 1287,
1296, 13 Cal.Rptr.3d 786, 90 P.3d
746.) Nothing in Measure K indicates
that it intended to operate
retroactively.12 The question, then, is
whether Measure K is impermissibly
retroactive if it applies to the new
supervisors.

“ ‘[D]eciding when a statute operates
“retroactively” is not always a simple
or mechanical task’ [citation] and
‘comes at the end of a process of
judgment concerning the nature and
extent of the change in the law and the
degree of connection between **191
the operation of the new rule and a
relevant past event’ [citation]. In
exercising this judgment, ‘familiar
considerations of fair notice,
reasonable reliance, and settled
expectations offer sound guidance.’
[Citation.]

*1288 [33] [34]“In general, application of
a law is retroactive only if it attaches
new legal consequences to, or increases
a party’s liability for, an event,
transaction, or conduct that was
completed before the law’s effective
date. [Citations.] Thus, the critical
question for determining retroactivity
usually is whether the last act or event
necessary to trigger application of the
statute occurred before or after the
statute’s effective date. [Citations.] A
law is not retroactive ‘merely because
some of the facts or conditions upon
which its application depends came
into existence prior to its enactment.’
[Citation.]” (People v. Grant (1999)
20 Cal.4th 150, 157, 83 Cal.Rptr.2d
295, 973 P.2d 72.)

Armstrong v. County of San Mateo
(1983) 146 Cal.App.3d 597, 194
Cal.Rptr. 294 (Armstrong) dealt with
article XIIIA, section 2, subdivision (b)
of the California Constitution, which
went into effect on July 1, 1978. (Id. at
p. 604, 194 Cal.Rptr. 294.) It allowed
tax authorities to assess real property
for the 1978-79 tax year at its assessed
value in the 1975-76 tax year, plus an
“inflation factor” of two percent per
year. (Id. at pp. 604-605, 194 Cal.Rptr.
294.)

The appellate court held that this was
not retroactive. (Armstrong, supra, 146
Cal.App.3d at pp. 613-614, 194
Cal.Rptr. 294.) “It is well settled that
‘[a] statute does not operate
retroactively merely because some of
the facts or conditions upon which its
application depends came into

Page 303 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

existence before the enactment.’
[Citation.] Application of the inflation
factor prior to the effective date of
article XIIIA does not give the 1975-76
full cash value assessment or the
pre-1978 adjustments thereof ‘an effect
different from that which they had
under previously existing law,’ such as,
for example, by retroactively
increasing taxes due in 1975-76 or any
other tax year prior to the effective date
of the article. Rather it merely utilizes
facts existing prior to enactment of the
article to determine tax rates to be
applied prospectively from the
effective date.” (Ibid., fn. omitted.)

In Sheyko v. Saenz (2003) 112
Cal.App.4th 675, 5 Cal.Rptr.3d 350
(Sheyko), the Legislature passed a
statute requiring aid applicants and
recipients to be fingerprinted in
accordance with the Statewide
Fingerprint Imaging System (SFIS) as
a condition of eligibility for benefits.
(Id. at pp. 684-686, 5 Cal.Rptr.3d 350.)
The trial court ruled that, as applied to
persons who were applicants but not
recipients when the statute went into
effect, the statute was impermissibly
retroactive. (Id. at p. 702, 5 Cal.Rptr.3d
350.)

The appellate court held that the statute
was not retroactive at all. (Sheyko,
supra, 112 Cal.App.4th at pp. 702-703,
5 Cal.Rptr.3d 350.) It explained: “
‘Application ... is retroactive only when
it gives a different and potentially
unfair legal effect to actions taken in
reliance on the preenactment law.’
[Citation.]” (Id. at p. 702, 5 Cal.Rptr.3d
350.) “SFIS compliance is an eligibility
requirement [citation] and *1289
recipients lose their entitlement as soon
as they lose their eligibility. [Citation.]
It would be no different than the
Legislature changing some other
eligibility condition, such as maximum
income: That new cutoff would apply
to all recipients, regardless of when
they became recipients. No recipient
has a reasonable expectation that
eligibility conditions will not change.

Nobody loses past benefits for present
noncompliance with SFIS.” (Id. at pp.
702-703, 5 Cal.Rptr.3d 350.)
“[E]ligibility is continually reevaluated
to see if the present conditions of
eligibility **192 are met. This means
the SFIS regulations do not ‘materially
alter the legal significance’ of applying
for benefits, nor give ‘a different and
potentially unfair legal effect to actions
taken in reliance on the preenactment
law.’ [Citation.]” (Id. at p. 703, 5
Cal.Rptr.3d 350.)

Here, once the new supervisors were
elected, they did have a vested right to
remain in office for one term.

However, they had no vested right to
run for a second term. As in Sheyko,
they could not reasonably expect that
eligibility conditions would not change.

In any event, the Board does not point
to any way in which they relied on any
such expectation.

Much as in Sheyko, the change in the
law here affects the new supervisors’
eligibility for future office. Thus, they
could always lose their eligibility due
to a statutory change. That is true even

Page 304 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

if, as here, “ ‘some of the facts or
conditions upon which its application
depends came into existence prior to its
enactment.’ [Citation.]” (People v.

Grant, supra, 20 Cal.4th at p. 157, 83
Cal.Rptr.2d 295, 973 P.2d 72.) As in
Armstrong, the one-term limit merely
looks at facts existing prior to its
enactment to determine eligibility, to
be applied prospectively from the
provision’s effective date. The
one-term limit is analogous to a
minimum age requirement, which
looks at an event in the past — the
person’s birth — to determine his or
her present eligibility to drink, smoke,
run for office, etc.

Measure K cannot and does not kick
out of office those supervisors who
were already serving a second or third
term. That would indeed be a
prohibited retroactive application.

However, it will bar them — just as it
bars the new supervisors — from
serving another term later.13

D. Does Measure K Violate AB 428
If It Applies to the New Supervisors?
The Board contends that applying
Measure K to the new supervisors
would violate AB 428.

*1290 Government Code section
25000, subdivision (b), as amended by
AB 428, provides:

“(1) ... [T]he residents of [a] county
may propose, by initiative, a proposal
to limit to no fewer than two terms ... a
member of the board of supervisors
may serve on the board of
supervisors....

“(2) The changes made to this
subdivision by [AB 428] shall not
affect any term limits that were legally
in effect prior to January 1, 2022, in
any county.”

As we held in part VI.B, ante, Measure
K went into effect on December 18,
2020. Accordingly, the one-term limit
does not violate AB 428.

[35]The Board argues that the
Legislature intended AB 428 to
overturn Measure K. “It is well
established, however, that legislative
intent should not be resorted to where a
statute is clear on its face.” (Greb v.

Diamond Internat. Corp. (2013) 56
Cal.4th 243, 256, 153 Cal.Rptr.3d 198,
295 P.3d 353.) In any event, as we
discussed in part IV.A.2, ante, the
Legislature did not intend AB 428 to
abrogate Measure K; indeed, it
amended AB 428 and added the
January 1, 2022 start date to make sure
it would not.

E. Does Measure K Violate
Provisions Protecting Supervisors’
Compensation?

Page 305 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

1. Statutory protection against
reduction of compensation.
[36]The Board relies on **193
Government Code section 1235,14
which provides: “The salary of any
elected public office shall not be
reduced during an election year after
any candidate for that particular office
has filed the requisite forms declaring
his or her candidacy for that particular
office.” Renner does not contend that,
under the home rule doctrine (see part
IV.A.1, ante), Measure K trumps
Government Code section 1235. We
deem her to have forfeited any such
contention.

Again, Measure K went into effect on
December 18, 2020. (See part VI.B,
ante.) That was “during an election
year.” While the record does not show
exactly when the new supervisors filed
their candidacy forms, it had to be
sometime before they were elected, on
November 3, 2020. It follows that the
compensation limit cannot apply to the
new supervisors.

*1291 2. Constitutional protection
against reduction of compensation.

The Board also asserts that its members
have constitutional protection against
the reduction of their compensation
during their terms. Somewhat
unhelpfully, Renner does not respond
to this contention.

Because we have just held that, under
Government Code section 1235, the
compensation provision of Measure K
cannot apply to the new supervisors
(see part VI.E.1, ante), we do not
decide this question. (See Thompson
v. Department of Corrections (2001)
25 Cal.4th 117, 129, 105 Cal.Rptr.2d
46, 18 P.3d 1198 [“we do not address
constitutional questions unless
necessary.”].)

VIII†
Unpublished Text Follows

THE TEMPORARY RESTRAINING
ORDER
Renner contends that, whether Measure
K was valid or not, the trial court erred
by enjoining City Clerk Monell from
certifying, authenticating, and
recording it.

A county charter amendment must be
“certified and authenticated by the
chairperson and clerk of the governing
body[,] ... attested by the county
elections official, ... recorded in the
office of the recorder of the county[,] ...
filed in the office of the county
elections official,” and “file[d] ... with
the Secretary of State ....” (Gov. Code,
§ 23713, incorporated by Gov. Code, §
23724.)

Page 306 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

Renner does not cite any portion of the
record showing that the trial court ever
actually issued an injunction against
this. She has not included the TRO
itself in the record, and, as noted in part
III, ante, the trial court never issued a
permanent injunction. Thus, Renner
has forfeited this contention. (See Cal.

Rules of Court, rule 8.204(a)(1)(C);
Brown v. El Dorado Union High
School Dist. (2022) 76 Cal.App.5th
1003, 1021.)

Separately and alternatively, any such
error is harmless and/or moot. Measure
K went into effect on December 18,
2020, regardless of when or even
whether it was certified, authenticated,
recorded, or filed. (See part VI.B,
ante.) Renner has not pointed out any
other way in which Monell’s failure to
perform her statutory duties was
prejudicial.

In any event, when we reverse a
judgment, we have the power to “direct
that the parties be returned so far as
possible to the positions they occupied
before the enforcement of ... the
judgment or order. In doing so, the
reviewing court may order restitution
on reasonable terms and conditions of
all property and rights lost by the
erroneous judgment or order, so far as
such restitution is consistent with rights
of third parties ....” (Code Civ. Proc., §
908.) Hence, we will direct the trial
court to allow county officials to
perform their duties, and also to order
that their performance be deemed to
relate back, nunc pro tunc, to the dates
when they should have performed
them.

At first glance, these dates might
appear speculative. Significantly,
however, Measure J and Measure K
were passed at the same time. It stands
to reason that Measure K would have
been certified, authenticated, recorded,
and filed at the same time as Measure J
(unless the Board deliberately
slow-walked Measure K). Therefore,
we will direct the trial court, on
remand, to ascertain when Measure J
was certified, authenticated, recorded,
and filed and to set forth these dates in
its nunc pro tunc order.

End of Unpublished Text

DISPOSITION
The trial court’s order granting the
petition is reversed. On remand, the
trial court must ascertain the dates on
which Measure J was certified,
authenticated, recorded, and filed. It
must then enter a new order, granting a
writ and/or an injunction prohibiting
the application of the compensation
limit to the new supervisors, but
otherwise denying the petition and
entering judgment against the Board on
the complaint. The order must provide
that Monell and all other county
officials may carry out their duties to
certify, authenticate, record, and file

Page 307 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

Measure K. It must also provide that
Measure K is deemed to have been
certified, authenticated, recorded, and
filed on the same dates as Measure J,
and it must specify those dates.

Renner is awarded costs on appeal
against the Board.

I concur:

MILLER, J.

MENETREZ, J., Dissenting.

Nearly every issue in this appeal is
moot, so nearly everything in the
majority opinion is advisory. Because I
would not issue an advisory opinion on
moot issues, I respectfully dissent.

*1292 Measure K, approved by the
voters of San Bernardino County (the
County) in 2020, imposed certain term
limits and compensation limits for
members of the board of supervisors.

After passage, Measure K was
challenged in the superior court, **194
which invalidated it as
unconstitutional. This appeal was taken
from that ruling.

Measure D, approved by the County’s
voters in 2022, imposed new term
limits and compensation limits for
members of the board of supervisors.

Measure D supersedes Measure K in its
entirety. Measure D has been
challenged in court, but to date no part
of it has been invalidated.

After Measure D passed, the County
requested that we stay this appeal
pending resolution of the Measure D
litigation. We invited and received
supplemental briefs from the parties on
the stay request and whether the appeal
is moot. The County’s request for a
stay was denied (over my objection).

But the County renewed the request at
oral argument, and we can also stay an
appeal on our own motion.

Because Measure D is currently in
effect, no provision of Measure K is
currently in effect. Consequently, it is
presently impossible for us to grant
effective relief on this appeal. The
appeal is from an order invalidating
Measure K. But no matter what we do,
Measure K cannot go back into effect
unless and until Measure D is
invalidated. The appeal is therefore
moot. (Lockaway Storage v. County
of Alameda (2013) 216 Cal.App.4th
161, 174–175, 156 Cal.Rptr.3d 607.)

The only issue that presently is not
moot is whether Measure K’s
compensation limits apply from 2020
to 2022, between the passage of
Measure K and the passage of Measure
D. But in the future, additional issues
might cease to be moot if Measure D is
invalidated in whole or in part. We
should accordingly stay this appeal
until there is a final judgment in the
Measure D litigation. Only then will
we have a final determination of which

Page 308 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

issues concerning Measure K are not
moot. At present, only one of them is.

I would vacate submission and stay the
appeal pending final resolution of the
Measure D litigation. I therefore
respectfully dissent.

All Citations
91 Cal.App.5th 1248, 309 Cal.Rptr.3d
163, 2023 Daily Journal D.A.R. 4954

Footnotes

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exceptions of part II, VI, and VIII.

1 In an unpublished portion of this opinion, we will reject the Board’s additional contention that Measure K violates the single-subject rule.

2 A hearing on a preliminary injunction was set, continued, and then vacated.

Thus, while the record is not entirely clear on this point, it appears that the TRO remained in effect until the trial court ruled on the petition.

See footnote *, ante.

3 Burdick drew on the Supreme Court’s earlier decision in Anderson v.

Celebrezze (1983) 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547. Accordingly, the approach it outlined is sometimes called the Anderson-Burdick test or the Anderson-Burdick framework. (See, e.g., Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 168, 126 Cal.Rptr.2d 727, 56 P.3d 1029 (Edelstein).) Renner and the Board both agree that the
Anderson-Burdick test is controlling here.

Recently, one federal appellate court held that the Anderson-Burdick test is “inapposite” to the analysis of term limits. (Kowall v. Benson (6th Cir. 2021) 18 F.4th 542, 547, cert. den. (2022) ––– U.S. ––––, 143 S. Ct. 88, 214 L.Ed.2d

15.) As we will discuss, however, controlling California Supreme Court authority

Page 309 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

requires us to apply the Anderson-Burdick test.

4 We respectfully disagree with Kern County Employees’ Retirement Assn. v.

Bellino (2005) 126 Cal.App.4th 781, 24 Cal.Rptr.3d 384 (Kern County), which held that an asserted infringement of the right to run for office is subject to rational-basis review. (Id. at p. 794, 24 Cal.Rptr.3d 384.) In our view, Kern County misread Justice Rehnquist’s plurality opinion in Clements, supra, 457 U.S. 957, 102 S.Ct. 2836. It said that strict scrutiny is not required (id. at p. 963, 102 S.Ct. 2836), but it did not say that rational basis review applies. To the contrary, it said, “Decision in this area of constitutional adjudication is a matter of degree, and involves a consideration of the facts and circumstances behind the law, the interests the State seeks to protect by placing restrictions on candidacy, and the nature of the interests of those who may be burdened by the restrictions.” (Ibid.) Thus, Clements foreshadowed the intermediate scrutiny subsequently announced by Anderson and refined by Burdick (neither of which Kern County cited).

5 As evidence of the purposes of Measure K, Renner cites the statement of reasons that appeared on petitions to qualify the initiative. (See Elec. Code, § 9202.) Such a statement, which was not made available to all voters, does not constitute legislative history. (Cf. Carter v. Commission on Qualifications of Judicial Appointments (1939) 14 Cal.2d 179, 185, 93 P.2d 140 [ballot pamphlet, “sent to the electors of the state,” is an indicator of intent].)

6 Charter cities also have home rule. (Cal. Const., art. XI, § 5, subd. (a).) “But the ‘version of “home rule” afforded to a charter city is substantially more expansive’ than that granted to charter counties. [Citation.] While charter cities are granted broad authority over ‘municipal affairs,’ ‘[t]here is no corresponding grant of authority and autonomy over the “county affairs” of charter counties. [Citations.]’ [Citation.]” (People v. Minor (2002) 96 Cal.App.4th 29, 40, 116 Cal.Rptr.2d 591.)
Subject to that caveat, case law dealing with charter cities also applies to charter counties. (See, e.g., Marquez v. City of Long Beach (2019) 32 Cal.App.5th 552, 562, fn. 5, 244 Cal.Rptr.3d 57 [“The cases addressing the home rule doctrine have applied the same analysis to the authority of charter

Page 310 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

counties ... and charter cities ... to set the compensation for their employees.”].)

7 Measure K defines “compensation” as “the actual cost to the County of all benefits of whatever kind or nature including but not limited to salary, allowances, credit cards, health insurance, life insurance, leave, retirement, memberships, portable communications devices, and vehicle allowances.” Thus, the compensation limit does not apply to the reimbursement of outlays benefiting the county, including travel reimbursement.

8 It also requires that supervisors be reimbursed for certain expenses, such as travel and transportation. (§ 13.0614, subds. (c)(5), (c)(6).) Once again, however, reimbursement is not “compensation” for purposes of Measure K’s $5,000 compensation limit. (See fn. 9, ante.)
Supervisors are also entitled to make voluntary contributions that can be used for certain purposes (medical, 401(k) plans, 457 plans, dependent care) without being subject to income tax. (§ 13.0614, subds. (c)(7), (c)(8), (c)(12).) As these come out of supervisors’ salaries, they, too, are not compensation within the meaning of Measure K.

***

See footnote *, ante.

9 Measure J also provided that, after 2020, supervisors’ terms would begin on the first Monday after the first day of January following their election.

10 While Government Code section 23723 does not use the word “charter,” it is part of a statutory scheme dealing exclusively with the proposal, revision, amendment, and repeal of county charters. (Gov. Code, §§ 23700-23732.)

11 The trial court mistakenly cited Government Code sections 23712 and 23713.

Those sections apply to a charter proposal or revision. However, Government

Page 311 of 323 ends

San Bernardino County Board of Supervisors v. Monell, 91 Cal.App.5th 1248 (2023) 309 Cal.Rptr.3d 163, 2023 Daily Journal D.A.R. 4954

Code sections 23723 and 23724, which apply to a charter amendment (as here) or repeal, are otherwise essentially identical to Government Code sections 23712 and 23713. Thus, the error was plainly harmless.

12 For this reason, we need not decide whether, under the home rule doctrine (see part IV.A.1, ante), Measure K overrides Government Code section 25000.

13 We therefore do not discuss Renner’s contention that the charter provision that supervisors’ terms begin on the first Monday of December is unconstitutional.

14 There are two section 1235s in the Government Code. We refer to the one enacted in 1980 (Stats. 1980, ch. 737, § 1), not the one enacted in 1994 (Stats. 1994, ch. 991, § 2).

†

See footnote *, ante.

End of Document

Page 312 of 323 ends

Filed3127l23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT
(Sacramento)
CULTIVA LA SALUD et al.,c09s486
Plaintiffs and Respondents,(Super. Ct. No. 34-2020-
80003458-CU-WM-GDS)
V
STATE OF CALIFORMA et aI.,
Defendants and Appellants.

APPEAL from a jqdgment of the Superior Court of Sacramento County, Shelleyanne W.L. Chang, Judge. Affirmed.

Rob Bonta, Attorney General, Tamar Pachter, Senior Assistant Attorney General, Molly K. Mosley, Craig D. Rust, Robert E. Asperger and Lauren E. Freeman, Deputy Attorneys General, for Defendants and Appellants.

Nielsen Merksamer Parrinello Gross & Leoni and Christopher E. Skinnell for California Chamber of Commerce, California Grocers Association, California Retailers Assooiation, Consumer Brands Association and American Beverage Association as Amici Curiae on behalf of Defendants and Appellants.

Jarvis Fay, Benjamin P. Fay, Edward K. Low, and Carolyn Liu for Plaintiffs and Respondents.

I
ATTACHMENT #4

Page 313 of 323 ends

assessments on certain grocery items, including, most relevant here, on sodas and other sugar-sweetened drinks. The act also imposes a penalty-the loss of all revenue from sales and use taxes-for violations of its terms. But it imposes its penalty only on charter cities and only if the city's "tax, fee, or other assessment is a valid exercise of [the] city's authority under Section 5 of Article XI of the California Constitution with respect to the municipal affairs of that city." ($ 7284.12, subd. (f).) Following the Groceries Act's passage, a nonprofit health advocacy organization and a city council member appearing in her individual capacity filed suit to challenge the act's penalty provision. They argued the provision wrongly serves to penalize charter cities that lawfully exercise their constitutional rights under the home rule doctrine. In their view, the Legislature probably understood that the home rule doctrine prevented the state from banning charter cities from taxing sugar-sweetened drinks; and so, as a workaround, the Legislature created the act's penalty provision to discourage charter cities from validly exercising their right to tax these drinks under the home rule doctrine.

The trial court, interpreting the law similarly, ultimately agreed the Groceries Act's penalfy provision is unlawful and deemed it unenforceable.

On appeal, the State of California, the California Department of Tax and Fee Administration, and the department's director (collectively, the Department) challenge the trial court's decision for two reasons. First, the Department contends the Groceries Act's penalty provision does not, as it states , penalize a charter city only when its tax on groceries "is a valid exercise" of the city's constitutional powers. ($ 728a.12, subd. (f).) It instead, the Department argues, penalizes a charter city only when its tax on groceries "would otherwise be a valid exercise of [the] city's constitutional authority, if not for the Groceries Act." Second, even if the trial court properly construed the act's penalty provision, the Department contends the trial court should have severed certain words from the penalty provision rather than deem the provision unenforceable in its entirety.

We affirm.

J Page 314 of 323

But the initiative's sponsors ultimately agreed to withdraw the proposed initiative after the Legislature and the Governor agreed to enact the Groceries Act-an act that would prohibit new taxes on nonalcoholic sugar-sweetened beverages and certain other groceries. In a letter to the California State Assembly, the Governor wrote: Four "cities are considering passing a soda tax to combat the dangerous and ill effects of too much sugar in the diets of children. In response, the beverage industry has circulated a far reaching initiative that would, if passed, raise the approval threshold from 50% to two- thirds on all measures, on all topics in all482 cities. Mayors from countless cities have called to voice their alarm and to strongly support the compromise which this bill represents." After calling the proposed initiative "an abomination," the Governor stated that the new law "must be signed." And so it was.3
The Groceries Act, with certain exceptions, provides that "a local agency shall not impose, increase, levy and collect, or enforce any tax, fee, or other assessment on groceries." (5 7284.12, subd. (a).) The act defines "local agency" to include, among other entities, charter cities, general law cities, and counties ($ 7284.10, subd. (g); Gov.

Code, S 7920.510) and defines "groceries" to include "any raw or processed food or beverage" but not "alcoholic beverages, cannabis, cannabis products, cigarettes, tobacco products, and electronic cigarettes" (5 7284.10, subd. (0). In prohibiting taxes on "groceries," the Groceries Act largely echoes existing law generally prohibiting taxes on "the sale of, and the storage, use, or other consumption in this state of food products for human consumption." ($ 6359, subd. (a); see also Cal. Const., art. XI[, $ 34.) But the 3 The state's effort to prevent the proposed initiative from making the ballot may prove short-lived. After the beverage industry agreed to withdraw the proposed initiative, others moved to place alarge|y identical initiative on the ballot. (See Legis. Analyst, analysis of proposed Taxpayer Protection and Government Accountability Act (Jan. 19, 2022) las of March 27 , 20231,
archived at : .)
5 Page 315 of 323

respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith." (Cal. Const., art. XI, $ 5, subd. (a).)
California voters initially approved the home rule doctrine over 100 years ago " 'upon the principle that the municipality itself knew better what it wanted and needed than the state at large, and tb give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisff its wants and needs ) " (Vista, supra,54 Cal.4th at pp. 555-556.) Discussing the doctrine shortly after its adoption, our Supreme Court explained that it "was intended to give municipalities the sole right to regulate, control, and govern their internal conduct independent of general laws; and this internal regulation and control by municipalities comprise those 'municipal affairs' spoken of in the constitution;' (Fragley v. Phelan (1899) 126 CaL.383, 387.) Our Supreme Court has since explained that among the powers granted charter cities under this doctrine is "the power to tax for local purposes." (City and County of San Francisco v. Regents of (Jniversity of Califurnia (2019) 7 Cal.5th 536,545.) Under the home rule doctrine, as currently written in article XI, section 5, acharter city's law is not preempted simply because it conflicts with a state law. (Sonoma County Organization of Public Employees y. County of Sonoma (Ig7g) 23 Cal.3d 296, 316-3 I S.) Nor is it necessarily preempted even when the Legislature explicitly intends preemption. (Ibid.) It is instead preempted only when it conflicts with a state law, the state law covers a subject of statewide concern, and the state law is " 'reasonably related to . . . resolution' of that concern" and"'narrowly tailored' to avoid unnecessary interference in local governanc e." (Visfa, st)pra,54 Cal.4that p. 556.) Charter cities are, in this respect, distinct from counties and general law cities, for unlike charter cities, their laws are preempted when they are "in conflict with" state law. (Cal. Const., art. XI, $ 7; see American Financial Services Assn. v. City of Oakland (2005) 34 CaI.4th 1239,1251.) 7 Page 316 of 323

soda or other sugary beverages to its voters to test the constitutionality of the penalty because the potential financial risk is too great for the City." It reasoned that "sales and use taxes generate 20Yo of the annual revenue for the [City's] general fund and the loss of this revenue would be financially devastating to the City." ry
Plaintffi'Suit
Cultiva La Salud-a nonprofit that, among other things, promotes healthy diets- and Martine Watkins-a Santa Cruz City Council member appearing in her individual capacity-sued the Department over the Groceries Act's penalty provision. Cultiva La Salud and Watkins (collectively, plaintiffs) asserted the penalty provision "is unconstitutional because it seeks to override Article XI, Section 5 of the California Constitution by severely penalizing charter cities if they properly exercise their constitutional home rule authority." Plaintiffs added that the drafters of the provision "[p]robably" understood that the Groceries Act's general ban on grocery taxes "would not apply to charter cities" and so included "a carefully drafted penalty provision targeted directly at charter cities to discourage them from exercising their constitutional home rule authority to impose taxes on sugary beverages." Plaintiffs sought a declaration that the Groceries Act's penalty provision is unlawful, an injunction barring enforcement of the provision, and a writ of mandate directing the Department not to implement the provision.

The Department, in opposition, contended the issue was not ripe for review. It reasoned that the constitutionality of the penalty should not be decided in a facial challenge; it instead should be decided only after a chartq city had enacted a tax triggering the Groceries Act's penalty. The Department also rejected plaintiffs' reading of the act's penalty provision. In its view, the act does not penalize a charter city when its grocery tax "is a valid exercise" of its constitutional powers under the home rule doctrine; it instead penalizes a charter city only when its grocery tax "would otherwise be 9 Page 317 of 323

an independent duty to consider, even when the parties decline to raise it, we will briefly address the issue here.
" 'The ripeness requirement, a branch of the doctrine ofjusticiability, prevents courts from issuing purely advisory opinions.' " (Vandermost v. Bowen (2012) 53 Cal.4th 421, 452.) It is " 'primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing ofthe controversy.'" (Ibid.) The doctrine ensures "'thatthe facts have sufficiently congealed to permit an intelligent and useful decision to be made,' " but it " 'should not prevent courts from resolving concrete disputes if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question.' " (Ibid., italics omitted.)
The American Beverage amici argue, as the Department did at the trial level, that a challenge to the Groceries Act's penalty provision will not be ripe for review until there is a "local tax against which to measure [the] state law." According to these amici curiae, then, a challenge to the act's penalty provision will be ripe for review only after a charter city elects to subject itself to the act's severe penalties. Only atthat time, they claim, can a court resolve whether the Groceries Act's terms and the local tax actually conflict.

We find differently. The American Beverage amici's logic, if accepted, would provide a framework for insulating laws from judicial review: The state could enact laws-even constitutionally suspect ones-that threaten exorbitant penalties against those who violate their terms; and because no one would likely violate these laws for fear of the penalties, no claim would ever be ripe for review. We reject this approach. Similar to the trial court, we find the facts here " 'have sufficiently congealed' " to allow resolution of plaintiffs' facial challenge to the Groceries Act's penalty provision. (Vandermost v.

Bowen, supra,53 Cal.4thatp.452.) We also find the American Beverage amici's l1 Page 318 of 323

the Groceries Act, the Department contends the court should have severed the "valid exercise" language and certain other words from the penalty provision and then retained the rest of the provision. We reject both arguments.

A. Bradley-Burns
To understand the Groceries Act and its penalty provision, it is helpful to start with the Bradley-Burns Uniform Local Sales and Use Tax Law (Bradley-Burns) ($ 7200 et seq.)-a law that, as the Department contends, inspired parts of the Groceries Act.

The Legislature enacted Bradley-Burns in 1955. (Rivera v. City of Fresno (1971) 6 Cal.3d 132, 136, disapproved of on other grounds in Yamaha Corp. of America v. State Bd. of Equalization(1998) 19 Cal.4th l, 15.) Before the law's enactment, different cities imposed different sales and use taxes that had different collection schemes. (See Century Plaza Hotel Co. v. City of Los Angeles (1970) 7 Cal.App.3d 616,624, fn.6.) In Bradley- Burns, "the Legislature enacted a uniform local sales and use tax law" to replace this scheme. (Rivera v. City of Fresno, at p. 136.) It also created incentives to convince counties and cities to participate in the new taxation law. Counties, which previously lacked the ability to impose sales and use taxes, would benefit through new " 'authority to impose sales and use taxes as a means of raising additional revenue .' " (Ibid.) Cities, in turn, would benefit through 'o 'aplan of state administration which w[ould] relieve them from operating collection systems of their own.' " (Ibid.) Should a county or city choose to participate in Bradley-Burns, it would among other things, need to contract with the Board of Equalization, the agency formally charged with implementing Bradley- Burns, " 'to perform all functions incident to the administration or operation of the flocal] sales and use tax ordinance.' " (Ibid.)
Over time, the Legislature expanded the scope of Bradley-Burns and made city participation in the law---once voluntary-mandatory for those seeking to impose sales and use taxes. In 1968, the Legislature amended the law to "declare[] that the state, by enactment of the Sales and Use Tax Law and the Bradley-Burns Uniform Local Sales and t3 Page 319 of 323

But after a senate committee analysis opined that the Legislature might be able to preempt charter cities from imposing these taxes (see Sen. Rev. & Tax. Com., analysis of Assem. Bill No. 3407, strpra, as amended June 26,1996, p. 3), the Legislature changed its approach. It added a statute-section 7282.3-prohibiting local governments, including charter cities, from levying the objected-to taxes. (Stats. 1996, ch.940,$ 2, p. 5317 .) But as a backstop, it also enacted an amendment to section 7203.5 that would "become operative only if the provisions of Section 7282.3 . . . are held to be inapplicable to charter cities." (Stats. 1996,ch.940, $$ 1,4, pp. 5315-5317.) As conditionally amended, section 7203.5 imposes the penalty that the Legislature initially proposed: The Board of Equalization "shall not" administer any sales or use tax ordinance of a local government if the local government imposes the prohibited transient occupancy tax. (Stats. 1996,ch.940, $ 1, pp. 5315-5317.)
B. The Groceries Act
Over 20 years later, the Legislature enacted the Groceries Act-taking inspiration from Bradley-Burns and particularly its 1996 amendment. Section 7284.12 of the Groceries Act, as covered, generally prohibits local agencies from "impos[ing], increasfing], levy[ing] and collect[ing], or enforcfing] any tax, fee, or other assessment on groceries." ($ 7284.12, subd. (a).) It also penalizes certain local agencies that violate this prohibition, stating: "The California Department of Tax and Fee Administration shall not administer and shall terminate its contract to administer any sales or use tax ordinance of a local agency under [Bradley-Burns] if that local agency imposes, increases, levies and collects, or enforces any tax, fee, or other assessment on groceries . . . for which a court of competent jurisdiction has determined both of the following": (1) the tax, fee, or assessment "is in conflict with" the Groceries Act's general prohibition on any tax, fee, or other assessment on groceries, and (2) "[t]he tax, fee, or other assessment is a valid exercise of a city's authority under Section 5 of Article XI of the California Constitution with respect to the municipal affairs of that city." (5 7284.12, subd. (f).) 15 Page 320 of 323

city." ($ 7284.12, subd. (f1.) That intentional penalty on a charter city's lawful exercise of its constitutional powers cannot stand.

Neither the Department's nor the American Beverage amici's arguments persuade us to find differently. We consider first the Department's argument. It asserts that section 7284.12 is not, as it states, intended to penalize a charter city only when its tax, fee, or other assessment on groceries "is a valid exercise of [the] city's authority under Section 5 of Article XI of the California Constitution." (5 7284.12, subd. (f).) It is instead, the Department argues, intended to penalize a charter city only when its tax, fee, or other assessment on groceries "wouId otherwise be a valid exercise of [the] city's constitutional arithority, if not for the Groceries Act." Put another way, according to the Department, when the Legislature referenced a city's tax, fee, or assessment that "is a valid exercise" of the city's constitutional authority, it really meant a city's tax, fee, or assessment that, because of the Groceries Act, "is not avalid exercise" of the city's constitutional authority. The Department adds that this construction avoids a reading that would render section 7284.12, subdivision (f) unlawful and is "consistent with the Legislature's stated intent for the provisions of the Groceries Act 'to be construed liberally to effectuate their intent, policy, and purposes.' " But although the Legislature intended a liberal construction of the Groceries Act ($ 7284.13), and although courts can construe ambiguous statutes to avoid constitutional doubts (Steen v. Appellate Division of Superior Court (2014) 59 Cal.4th 1045, 1054), neither of those considerations advance the Department's position here. The fundamental problem with its position is that it departs from the statute's plain text. Section7284.l2 does not refer to a tax, fee, or other assessment that would have been a valid exercise of a city's constitutional authority if not for the Groceries Act; it refers instead to a tax, fee, or other assessment that "ls a valid exercise" of a city's constitutional authority. ($ 7284.12, subd. (f)(2).) And again,thatlanguage is problematic. For as even the Department concedes, if a tax imposed by a charter city truly is a valid exercise of the city's authority T7 Page 321 of 323

successfully argues to a court that the tax is permissible under its constitutional home rule authority." Despite acknowledging this intent to penalize lawful conduct, the American Beverage amici argue the penalty provision is valid nonetheless for two reasons.

First, they assert section 7284.12's penalty is lawful because the Legislature intended to preempt-and in fact did preempt-local grocery taxes. We agree the Legislature intended to preempt most local taxes in this area. Section7284.9 explains, for instance, that "[i]t is the intent of the Legislature to regulate the imposition and collection of taxes and other charges on groceries comprehensively and to occupy the field to the exclusion of local action except as specifically provided in this chapter." ($ 7284.9, subd. (a).) It adds "[t]hat the promotion of uniformity in the taxation of groceries is a matter of statewide concern and, therefore, is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution." (1d., subd. (b).) But as covered, section 7284.12's penalty is not intended to cover conduct that is preempted; it is instead intended to cover conduct that is not preempted in an effort to " ' "chill the assertion of constitutional rights." ' " (King, supra,3 Cal.3d atp.235.) That is improper, Second, the American Beverage amici fault the trial court for failing to consider whether section 7284.12's penalty was reasonably calculated to advance the legitimate regulatory objectives of uniformity of taxation-which, according to these amici curiae, is the appropriate test to apply in this instance. But again, the Legislature's sole purpose in imposing the penalty was " ' '(to chill the assertion of constifutional rights." ' " (King, supra,3 Cal.3d at p. 235.) That is not, as the American Beverage amici c\aim, a legitimate regulatory objective. It is instead a" ' "patently unconstitutional" ' " objective. (Ibid.; see California Teachers Assn. v. State of California (1999) 20 Cal.4th 327 ,338 fif a certain statute had "no purpose other than to chill the exercise of the right of teachers to demand a hearing before they are dismissed or suspended, we must hold the statute unconstitutional on its face"l; Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal.3d at p. 319 f"while the state may impose t9 Page 322 of 323

[Bradley-Burns] if that local agency imposes, increases, levies and collects, or enforces any tax, fee, or other assessment on groceries . . . for which a court of competent jurisdiction has determined bethef the following: [1T] (1) The tax, fee, or other assessment is in conflict with the prohibition set forth in subdivision (a), and is not a tax, fee,orotherasseSSmentdescribedinsubdivision(b)or(d).
,t
But as the Department acknowledges, this change would significantly alter the scope of section 7284.12. As currently drafted, the statute threatens to penalize only charter cities as only charter cities can "validfly] exercise . . . authority under Section 5 of Article XI of the California Constitution." ($ 7284.12, subd. (0(2).) But under the Department's edits, the statute would instead threaten to penalize all "local agencfies]"- a term defined to include, among other entities, charter cities, general law cities, and counties. (S 7284.10, subd. (g); Gov. Code, S 7920.510.) The Department concedes this change but claims it is insignificant because counties and general law cities "are less likely to impose a prohibited tax." We find differently. Severance is a tool for removing offensive language when the language is grammatically, functionally, and volitionally separable-not a tool for creating new penalties (in this case, penalties against counties and general law cities) that the Legislature never even considered. Because we cannot say that the Legislature would have adopted the scheme that the Department envisions, we reject its proposed edits. (See Califurnia Redevelopment Assn. v. Matosontos, supra, 53 Cal.4th atp.271 [severance is inappropriate when the resulting scheme is not one the Legislature necessarily would have adopted] . )
2l

Page 323 of 323 ends

Indian Wells City CouncilJanuary 18, 2024

Indian Wells City Council
January 18, 2024