The opinion
Filed 7/28/23; Certified for Publication 7/31/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
COALITION OF COUNTY UNIONS, B314973
et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. 20STCP04019)
v.
LOS ANGELES COUNTY BOARD OF
SUPERVISORS, et al.,
Defendants and Appellants;
RE-IMAGINE LOS ANGELES
COUNTY COALITION, et al.,
Intervenors and Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mary Strobel, Judge. Reversed with
directions.
Office of County Counsel, Peter M. Bollinger and Michael
S. Buennagel; Kendall Brill & Kelly, Laura W. Brill, and David T.
Freenock, for Defendants and Appellants.
Strumwasser & Woocher, Dale K. Larson, Fredric D.
Woocher, Salvador E. Perez, and Julia Michel, for Intervenors
and Appellants.
Bell, McAndrews & Hiltachk, Thomas W. Hiltachk, and
Paul Gough, for Plaintiffs and Respondents.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
In November 2020, the voters of Los Angeles County
(County) amended the County charter by enacting Measure J.
The charter amendment adopted by Measure J requires the
County Board of Supervisors (Board) to annually allocate at least
10 percent of the County’s locally generated unrestricted
revenues in the general fund to direct community investment
(such as youth programs, job training, rental assistance, and
affordable housing) and alternatives to incarceration (including
health, mental health, and substance use disorder programs).
The charter amendment also specifically prohibits Measure J
funds from being allocated to any carceral system or law
enforcement agency.
Immediately after Measure J’s enactment, a coalition of
County employee unions and two individuals filed a petition for a
peremptory writ of mandate prohibiting the Board, the Los
Angeles County Auditor (auditor), and the Los Angeles County
Chief Executive Officer (CEO) from enforcing the charter
amendment. The trial court granted the petition, concluding that
the amendment would severely impair the County’s ability to
2
exercise essential government functions, including managing the
County’s budget and protecting public safety, which were matters
of statewide concern.
We reverse. Article XI, section 4, subdivision (g) of the
California Constitution provides that if a county has adopted a
charter for its own governance, “the general laws adopted by the
Legislature in pursuance of Section 1(b) of this article, shall, as to
such county, be superseded by said charter as to matters for
which, under this section it is competent to make provision in
such charter, and for which provision is made therein, except as
herein otherwise expressly provided.” (Italics added.) Such
matters include “[t]he performance of functions required by
statute” (id. art. XI, § 4, subd. (d) (§ 4(d)) and “[t]he powers and
duties of governing bodies and all other county officers” (id.,
art. XI, § 4, subd. (e) (§ 4(e)). Because the charter amendment
enacted by Measure J defines a “power” (allocating locally
generated unrestricted revenues) and a “duty” (directing
10 percent of such revenues to particular purposes) of the
County’s “governing bod[y]” (the Board)—and because it concerns
“[t]he performance of functions required by statute” (adopting a
budget)—it is a permissible exercise of the County’s authority to
amend its charter. Further, contrary to petitioners’ contentions,
the amendment neither impairs the exercise of essential
government functions nor violates state law. Measure J thus is
enforceable, and we therefore will reverse the judgment granting
the petition for writ of mandate.
3
FACTUAL AND PROCEDURAL BACKGROUND
I. Adoption of Measure J by Los Angeles County voters.
In July 2020, the Board adopted a resolution placing
Measure J, a proposal to amend the Los Angeles County Charter
(Charter), on the November 2020 ballot. Measure J asked
County voters to decide whether the Charter should be amended
to require the County to “annually allocat[e] in the County’s
budget no less than ten percent (10%) of the County’s locally
generated unrestricted revenues in the general fund to address
the disproportionate impact of racial injustice through
community investment and alternatives to incarceration and
prohibit[] using those funds for carceral systems and law
enforcement agencies as detailed in the ordinance adopting the
proposed charter amendment.”
The accompanying ordinance proposed amending
article III, section 11 of the Charter as follows:
“It shall be the duty of the Board of Supervisors: [¶] . . . [¶]
(8) To allocate, in compliance with all laws and regulations, the
County’s locally generated unrestricted revenues in the general
fund as follows:
“A. Set aside a baseline minimum threshold of at least
ten percent (10%) of the County’s locally generated unrestricted
revenues in the general fund (Net County Cost), as determined
annually in the budget process or as otherwise set forth in the
County Code or regulations, to be allocated on an annual basis,
after input from, among others, the public and County
departments at a public hearing, for the following primary
purposes:
4
“i. Direct Community Investment.
“1. Community-based youth development
programs.
“2. Job training and jobs to low-income residents
focusing on jobs that support the implementation of the
‘Alternatives to Incarceration’ workgroup recommendations as
presented to the County Board of Supervisors on March 10, 2020,
especially construction jobs for the expansion of affordable and
supportive housing, restorative care villages, and a decentralized
system of care.
“3. Access to capital for small minority-owned
businesses, with a focus on Black-owned businesses.
“4. Rent assistance, housing vouchers and
accompanying supportive services to those at risk of losing their
housing, or without stable housing.
“5. Capital funding for transitional housing,
affordable housing, supportive housing, and restorative care
villages with priority for shovel-ready projects.
“ii. Alternatives to incarceration.
“1. Community-based restorative justice programs.
“2. Pre-trial non-custody services and treatment.
“3. Community-based health services, health
promotion, counseling, wellness and prevention programs, and
mental health and substance use disorder services.
“4. Non-custodial diversion and reentry programs,
including housing and services.
“B. The set aside shall not be used for any carceral
system or law enforcement agencies, including the Los Angeles
County Sheriff’s Department, Los Angeles County District
Attorney’s Office, Los Angeles County Superior Courts, or
5
Los Angeles County Probation Department, including any
redistribution of funds through those entities. This restriction
does not extend to State law requiring the County to fund court
facilities and expenditures, including but not limited to, the Trial
Court Facilities Act of 2002 (2002 Senate Bill No. 1732) and
Lockyer-Isenberg Trial Court Funding Act of 1997 (1997
Assembly Bill No. 233), other mandatory fines and fees, or any
other County commitments to the extent required by law.
“C. The unrestricted revenues that are set aside shall
phase in over a three-year period, beginning July 1, 2021, and
incrementally grow to the full set-aside by June 30, 2024,
pursuant to the procedures codified in the County Budget Act in
the Government Code.
“D. The set-aside cannot supplant monies otherwise
allocated for the same categories listed in Subsection (8)(A), as
defined and set forth in the County Code or regulations.
“E. The Board of Supervisors shall establish an inclusive
and transparent process on the allocation of funds set aside by
this Subsection (8).
“F. Notwithstanding this Subsection (8), the Board of
Supervisors may, by a four-fifths vote, reduce the set-aside in the
event of a fiscal emergency, as declared by the Board of
Supervisors, that threatens the County’s ability to fund
mandated programs.”
On November 30, 2020, the Los Angeles County Registrar
of Voters certified that Measure J had been approved by the
voters.
6
II. Petition for writ of mandate.
On December 8, 2020, the Coalition of County Unions 1 and
two individual taxpayers (collectively, Coalition) filed a petition
for writ of mandate against the Board, auditor, and CEO seeking
to invalidate Measure J on the ground that the voters lacked
constitutional and statutory authority to require the Board and
County officers to take specific budget actions.
The Coalition asserted, first, that the matters that may be
included in a county’s charter are limited to those enumerated in
article XI, section 4 of the State Constitution. Because “[n]o
provision of article XI, section 4 authorizes a county charter to
prescribe the duties of [a board of supervisors, auditor, or CEO]
in connection with the county budget or the mandatory allocation
of revenue to any specific county program,” the Coalition urged
that Measure J is unconstitutional. The Coalition further
contended that the Board’s specific powers and duties with
respect to County budgets derive from the County Budget Act,
Government Code 2 section 29000 et seq. (County Budget Act).
Pursuant to the County Budget Act, the Board, auditor, and CEO
“each have a specific role in crafting and ultimately enacting the
annual County budget.” Measure J “conflicts with the powers
and duties of” the Board, auditor, and CEO as set forth in the
County Budget Act because Measure J requires the Board and
these individuals to “comply with the dictates of Measure J,
1 The Coalition of County Unions is a group of 14 member
unions representing Los Angeles County employees, including
the Association for Los Angeles Deputy Sheriffs.
2 All subsequent undesignated statutory references are to
the Government Code.
7
regardless of the public testimony . . . , the requests of [the]
department heads, . . . [and] the [Board’s] own determination of
whether it deems the mandated expenditures advisable.”
Finally, the Coalition urged that Measure J seriously impairs the
Board’s exercise of its essential government function of managing
the county’s financial affairs and “unlawfully binds the hands of
future Boards.”
III. Answer and opposition to petition for writ of
mandate.
The Board filed an answer and opposition to the mandate
petition. First, it asserted that county charters are
constitutionally permitted to address budgeting. Second, under
California Supreme Court authority, a court should find a matter
delegated exclusively to a local governing body, not to the voters,
only if the Legislature clearly said so in connection with a matter
of “statewide concern.” Measure J, the Board said, was “carefully
designed to avoid interference with anything beyond an issue of
local concern” and “does not interfere with any statewide law,
policy, or State direction over the use of funds” because it does
not affect the allocation of “restricted County expenditure[s]” or
“non-locally-generated funds.” Moreover, the charter amendment
enacted by Measure J “does not prevent the County’s Board of
Supervisors from directing the budget . . . [or] complying with
State or Federal budget requirements,” and it “does nothing to
undermine the State-law-regulated procedure by which the
County’s budget is allocated.” Indeed, the Board said, the
amendment does not impose any requirements in conflict with
the County Budget Act, and it allows the Board, by a four-fifths
vote, to reduce the set-aside in the case of a fiscal emergency that
might affect mandated programs.
8
In connection with its opposition, the Board submitted the
declaration of County Senior Assistant CEO Matthew McGloin.
McGloin noted that the charter amendment enacted by Measure
J required a set-aside of a portion of “the County’s locally
generated unrestricted revenues in the general fund (Net County
Cost).” (Italics omitted.) The amendment did not define this
term, but McGloin said County expenditures are restricted in a
variety of ways, including by constitutional requirements to
provide services such as public and mental health services, social
services, indigent defense, property tax assessment, and public
safety services; “maintenance of effort” requirements, which
require the County to meet defined funding or services levels as a
condition of receiving state or federal funding; contracts with
unions requiring the County to provide specific salaries and
benefits for County employees; and judgments entered against
the County. McGloin estimated that the County’s total budget
for the 2021–2022 budget year would exceed $36 billion, of which
approximately $3 billion would qualify as “locally generated
unrestricted revenues.” Based on that estimate, the fully-
implemented Measure J set-aside based on anticipated 2021–
2022 revenue would be approximately $300 million. 3
3 McGloin noted that Measure J provided for the set-aside to
be phased in over three years. The $300 million estimate
assumed a fully implemented set-aside.
9
IV. Judgment granting petition for peremptory writ of
mandate.
On July 7, 2021, the trial court granted an application to
intervene filed by Re-Imagine Los Angeles County Coalition (Re-
Imagine LA) 4 and Thomas Newman (collectively, intervenors).
After a hearing, the court granted the petition for writ of
mandate. It explained its ruling as follows:
Los Angeles County is a charter county. As such, it “ ‘has
only those powers and can enact within its charter only those
provisions authorized by the Constitution. These include those
enumerated in article XI, section 4 [of the California
Constitution].’ ”
In DeVita v. County of Napa (1995) 9 Cal.4th 763 (DeVita),
the California Supreme Court set forth the standard for
determining when the electorate’s initiative and referendum
rights have been restricted by the state Legislature. Under
DeVita, courts must presume, absent a clear showing of the
Legislature’s intent to the contrary, that the legislative decisions
of a city council or board of supervisors are subject to amendment
4 Re-Imagine LA is a coalition of 13 organizations making up
the Coalition Coordinating Committee and 131 organizational
members. The 13 committee members are: The Advancement
Project of California, Bend the Arc, Black Lives Matter L.A.,
Brilliant Corners, Community Coalition, CURB, Dignity & Power
Now, La Defensa, Los Angeles Black Worker Center, TransLatin
Coalition, the United Way of Greater Los Angeles, White People
4 Black Lives, and the Youth Justice Coalition.
10
by the voters through initiative and referendum. 5 The
presumption in favor of the rights of initiative and referendum
“ ‘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’ ”
by delegating authority exclusively to a local governing body. To
determine whether the Legislature so intended, a court must
consider the relevant statutory language, whether the subject at
issue is a matter of “ ‘statewide concern,’ ” and whether
submitting an issue to the voters would seriously impair the
Board’s exercise of an essential government function.
As relevant here, the County Budget Act directs that a
variety of budget-related tasks shall be performed by “the board.”
Citing Totten v. Board of Supervisors (2006) 139 Cal.App.4th 826
(Totten), the court found that this statutory language “ ‘gives rise
to a strong inference that the Legislature intended to preclude
the electorate from exercising authority over the adoption of a
county budget.’ ” Further, the court said, county budgeting for
law enforcement agencies is a matter of statewide concern, and
Measure J constrains the Board’s discretion relating to funding of
those agencies. As a result, Measure J “could potentially have an
indirect impact on [the] County’s ability to budget for state-
mandated programs” and “could also prevent [the Board] from
spending substantial discretionary funds on public safety, even if
the Board otherwise deemed such expenditures necessary for
public safety or welfare.”
5 The trial court noted that Measure J was placed on the
ballot by the Board, not by voter initiative. It found that DeVita
nonetheless was an appropriate framework by which to analyze
Measure J’s asserted conflict with state law.
11
Finally, the court concluded that Measure J would
seriously impair the Board’s exercise of the essential government
function of managing the County’s financial affairs and allocating
funds for law enforcement agencies. The court noted that “ ‘[a]n
essential function of a board of supervisors is the management of
the financial affairs of county government, which involves the
fixing of a budget,’ ” and Measure J “will meaningfully and
substantively reduce Board discretion over County funds.”
Further, the court said, a charter amendment “similar to
Measure J – but restricting a greater percentage of unrestricted
locally generated revenues – could essentially eliminate the
Board’s discretionary county budgeting and spending decisions.”
This limitation on the Board’s discretion was not mitigated by the
amendment’s fiscal emergency provision because “[the] Board
would still lack authority to appropriate the set-aside funds for
public safety agencies if [the] Board, in its discretion and by
majority vote, found that conditions required additional public
safety funding. Only a supermajority of the Board can
temporarily suspend Measure J. Thus, this clause would not
guarantee that [the] Board could suspend Measure J if necessary
to fund mandated programs.”
The court entered a judgment granting the petition for writ
of mandate on August 16, 2021. The Board and intervenors
timely appealed.
DISCUSSION
The fundamental question raised by this appeal is whether
a county may adopt a charter provision that restricts its board of
supervisors’ discretion over the county’s budget. The Coalition
asserts, and the trial court concluded, that the charter
amendment adopted by Measure J is unenforceable because it
12
conflicts with state laws that give unfettered discretion over
county budgeting to the Board. The County and intervenors
disagree, contending that charter provisions supersede state law
with regard to county management, and in any event the
amendment is consistent with state law.
As we discuss, the California Constitution permits counties
to adopt charters for their own governance. County charter
provisions supersede state law “as to matters for which [counties]
. . . [are] competent to make provision in such charter.” (Cal.
Const., art. XI, § 4, subd. (g).) Those matters include the “[t]he
performance of functions required by statute” and the “powers
and duties of governing bodies and all other county officers.” (Id.,
§§ 4(d), (e).) Because the Charter amendment enacted by
Measure J defines the powers of the County’s Board in the
context of adopting a budget—and because it does not
incapacitate the County from performing any functions required
by statute—it is a valid exercise of the County’s constitutional
authority. Moreover, contrary to the Coalition’s contention, the
amendment is not inconsistent with state law. We therefore find
no impediment to implementing Measure J. 6
I. Standard of review.
We independently review the validity of measures adopted
by the voters. (People v. Lippert (2020) 53 Cal.App.5th 304, 311;
6 We decline the Board’s and intervenors’ requests for
judicial notice, filed June 23, 2022, because none of the
documents of which judicial notice is sought is relevant to our
resolution of the appeal. (See JPMorgan Chase Bank, N.A. v.
Superior Court (2022) 85 Cal.App.5th 477, 498, fn. 6 [“ ‘An
appellate court “may decline to take judicial notice of matters not
relevant to dispositive issues on appeal” ’ ”].)
13
California Family Bioethics Council, LLC v. California Institute
for Regenerative Medicine (2007) 147 Cal.App.4th 1319, 1338.)
A voter-adopted measure “ ‘ “ ‘must be upheld unless [its]
unconstitutionality clearly, positively, and unmistakably
appears.’ ” ’ (Pala Band of Mission Indians v. Board of
Supervisors (1997) 54 Cal.App.4th 565, 574.) For a facial
challenge to succeed, [a challenger] must demonstrate ‘the
challenged portion will result in legally impermissible outcomes
“in the generality or great majority of cases.” ’ ” (Alliance for
Responsible Planning v. Taylor (2021) 63 Cal.App.5th 1072, 1084,
citing Larson v. City and County of San Francisco (2011)
192 Cal.App.4th 1263, 1280, and San Remo Hotel v. City and
County of San Francisco (2002) 27 Cal.4th 643, 673.) “Under this
test, ‘we may not invalidate a [measure] simply because in some
future hypothetical situation constitutional problems may
arise . . . .’ (California Teachers Assn. v. State of California
(1999) 20 Cal.4th 327, 347.) Conversely, we may not ‘ “uphold the
law simply because in some hypothetical situation it might lead
to a permissible result.” ’ ” (Alliance for Responsible Planning, at
p. 1084.)
II. Measure J is a permissible exercise of the County’s
constitutional power to amend its charter.
A. Constitutional provisions governing county
governance and county “home rule.”
Article XI, section 1 of the California Constitution divides
the state into counties, “which are legal subdivisions of the
State,” and provides that the Legislature shall “provide for
county powers . . . and an elected governing body in each county.”
(Cal. Const., art. XI, § 1, subds. (a)–(b).) A parallel provision,
14
article XI, section 2, grants the Legislature authority to provide
for formation of cities and to “provide for city powers.” Under the
authority of these sections, the Legislature has enacted hundreds
of statutes that regulate the powers and governmental structure
of both counties and cities. (See Dibb v. County of San Diego
(1994) 8 Cal.4th 1200, 1206 (Dibb).)
Article XI, section 3 “allows for an alternative
governmental structure” (Dibb, supra, 8 Cal.4th at p. 1206)—
that is, for the adoption by a city or county of “a charter by
majority vote of its electors voting on the question.” (Cal. Const.,
art. XI, § 3, subd. (a).) Article XI, section 4 provides that a county
charter shall provide for a governing body, elected sheriff, elected
district attorney, elected assessor, and other county officers. (Id.,
art. XI, § 4, subds. (a), (c).) 7 Additionally, and of particular
relevance to this case, a county charter shall provide for “[t]he
performance of functions required by statute” (id. art. XI, § 4(d))
and “[t]he powers and duties of governing bodies and all other
county officers” (id., art. XI, § 4(e)). Provisions of a charter “are
the law of the State and have the force and effect of legislative
enactments.” (Id., art. XI, § 3, subd. (a).)
Counties that have adopted charters, referred to as charter
counties, “have all the powers that are provided by this
Constitution or by statute for counties” (Cal. Const., art. XI, § 4,
subd. (h))—that is, to “make and enforce within its limits all
local, police, sanitary, and other ordinances and regulations not
in conflict with general laws” (id., art. XI, § 7). If a county “has
framed and adopted a charter, and the same shall have been
approved by the Legislature as herein provided, the general laws
7 A parallel provision, article XI, section 5, concerns city
charters.
15
adopted by the Legislature in pursuance of Section 1(b) of this
article, shall, as to such county, be superseded by said charter as
to matters for which, under this section it is competent to make
provision in such charter, and for which provision is made
therein, except as herein otherwise expressly provided.” (Id.,
art. XI, § 4, subd. (g), italics added.)
A county’s charter may be amended, revised, or repealed
“in the same manner” as it was originally adopted—i.e., by
majority vote of the county’s voters. (Cal. Const., art. XI, § 3,
subd. (a).) Charter amendments may be proposed “by initiative
or by the governing body.” (Id., art, XI, § 3, subd. (b).)
B. Supreme Court decisions addressing purported
conflicts between county charter provisions
and state law.
Our Supreme Court has twice considered purported
conflicts between county charters and state law. In Reuter v.
Board of Supervisors (1934) 220 Cal. 314 (Reuter), the court
addressed the interplay between state statutes that assigned
road commissioner duties to county supervisors and a provision of
the San Mateo County charter that assigned those same duties to
the county engineer. A taxpayer challenged the charter
provision, urging that the board of supervisors had exclusive
jurisdiction over county roads and highways as a matter of state
law, and the supervisors could not legally be divested of that
jurisdiction by the county’s charter. (Id. at pp. 318–319.)
The Supreme Court concluded that the charter provision
was enforceable notwithstanding its “direct conflict with”
state law. The court explained that under article XI,
former section 7 1/2 (now, article XI, section 4(e)) of the
California Constitution, counties were permitted through their
16
charters to provide for the powers and duties of boards of
supervisors and all other county officers. (Reuter, supra, 220 Cal.
at p. 320.) At the time section 7 1/2 was adopted, existing
state law “fixed and defined the powers and duties of the board of
supervisors and of each and every county officer in the state.”
(Ibid.) Accordingly, if the powers and duties of boards of
supervisors and officers of charter counties were superseded by
state law, then any attempt to provide for those powers and
duties in the charter “would be an idle act and a useless
expenditure of effort.” (Id. at p. 321.) The court explained: “If
these powers and duties as fixed by the charter conflicted in any
way with those fixed by general laws then, . . . to the extent that
they are inconsistent with those fixed by the general laws, they
would be ineffective and void. If they did not so conflict with
those fixed by the general laws, . . . the charter provisions fixing
said powers and duties, though valid, would simply amount to a
re-enactment of that which was already the law—a mere
superfluous or idle act. We do not think the framers of the
amendment, nor the people of the state who ratified it,
contemplated any such absurd result.” (Ibid.) Accordingly, the
court said, the state Constitution necessarily permitted a county,
by charter, “to provide for the duties of its officers different from
and inconsistent with those provided by the general laws” (id. at
p. 324, italics added), and thus the provision of the San Mateo
County charter transferring the duties of road commissioners
from the members of the board of supervisors to the county
engineer “is a valid and constitutional charter enactment” (id. at
p. 327).
In reaching this conclusion, the court distinguished the
case before it from Wilkinson v. Lund (1929) 102 Cal.App. 767
17
(Wilkinson), which had addressed the enforceability of a provision
of the Butte County charter that fixed the maximum property tax
rate at two cents on the dollar. Wilkinson held that the
challenged charter provision was unenforceable because it would
incapacitate the county from performing essential functions
imposed on it by the state such as law enforcement, public health,
supporting dependent children, and maintaining roads and
highways. (Id. at p. 773.) The Reuter court said Wilkinson’s
holding was fully consistent with its own, explaining: “In
[Wilkinson] the court was dealing entirely with public functions
which had been delegated to the county by the Constitution, and
which it was held the county could not by means of a charter
incapacitate itself from performing. The present proceeding is
not concerned with powers or duties of that character . . . . While
the state may have a general interest in the roads and highways
of the counties it is not concerned with the particular individual
whose duty it is simply to employ the men and teams and other
help necessary to construct and repair such roads and highways.”
(Reuter, supra, 220 Cal. at p. 325.)
The Reuter court concluded: “The general purpose of
section 7 1/2 of article XI of the Constitution was to give local
self-government or county home rule to counties of the state by
means of charters framed under said constitutional
amendment. . . . [¶] . . . [¶] The people of the state in the
adoption of this amendment had good cause to believe, and
evidently did believe, that they were thereby providing a means
whereby they might have home rule in their local and county
affairs, including the right, in the words of the amendment, to
provide for the powers and duties of their county officers. The
amendment as adopted by them, when construed as a whole, is
18
not only susceptible of such a construction, but cannot be given
any other reasonable interpretation.” (Reuter, supra, 220 Cal. at
pp. 326–327.)
The court reaffirmed Reuter’s holding in Dibb, supra,
8 Cal.4th 1200. There, the voters of San Diego County had
amended their county charter to create a “Citizens Law
Enforcement Review Board” (CLERB) with subpoena powers to
review complaints about county sheriffs. (Id. at p. 1204.) A
taxpayer filed suit to enjoin the county from spending funds to
implement the CLERB, asserting there was no legal authority for
its creation and, in any event, a citizen review board could not
lawfully be authorized to issue subpoenas. (Id. at p. 1205.) The
trial court and Court of Appeal rejected the taxpayer’s
arguments, concluding that county voters were permitted by
charter amendment to create the CLERB and to grant it
subpoena power. (Ibid.)
The Supreme Court affirmed. It explained that because
article XI, section 4, subdivision (h) of the Constitution provides
that charter counties “shall have all the powers that are provided
by this Constitution or by statute for [general law] counties,” the
CLERB was valid if there was statutory authority for its creation.
(Id. at p. 1208.) The inverse was not true, however: That is, the
absence of statutory authority was not dispositive of the county’s
power to create the CLERB because article XI, section 4(e)
permits counties, through their charters, to provide “for the
‘powers and duties of governing bodies and all other county
officers,’ ” and section 3, subdivision (a) provides that such
charter provisions “ ‘supersede . . . all state laws inconsistent
therewith.’ ” (Dibb, at p. 1211, italics omitted.) Thus, the court
said, the proper inquiry was not whether state law expressly
19
permitted counties to create citizen review boards with subpoena
powers, but instead whether the CLERB’s creation was “properly
grounded on the county’s authority to provide for the ‘powers and
duties’ of its local officers and the operation of its local
government.” (Ibid.) As to that issue, the relevant question was
“not whether the Constitution expressly confer[s] the specific
challenged power; instead, the inquiry focuse[s] on whether,
given the Constitution’s text, the challenged power [is]
‘authorized’ ”—that is, whether it “is an appropriate power under
[article XI], section 4(e).” (Id. at p. 1214.) While the court agreed
with the plaintiff that the Constitutional authorization for
charter counties to provide for the powers and duties of county
officers did not authorize “ ‘any power the county electorate may
choose to provide,’ ” it concluded that San Diego County could
create a CLERB with the power to issue subpoenas because “the
grant of power to issue subpoenas is the type of ‘power’ properly
conferrable under article XI, section 4(e).” (Dibb, supra, at
pp. 1216, 1218–1219.) 8
In so holding, the court noted that the case before it did not
present a conflict between article XI, sections 4(d) and (e)—that
is, the grant of subpoena powers pursuant to section 4(e), which
authorizes charters to provide for “the powers and duties of . . .
8 In this regard, the court noted that many local
governments nationwide gave subpoena power to boards like the
CLERB, and “the power to issue subpoenas is reasonably
necessary to the full accomplishment of the legitimate goals of
the legislation.” (Dibb, supra, 8 Cal.4th at pp. 1216–1217.) Thus,
the court said, “we reject plaintiff’s assertion that the power
granted by the charter amendment to issue subpoenas is outside
the constitutionally authorized scope of section 4(e).” (Id. at
p. 1217.)
20
county officers,” did not run afoul of section 4(d), which requires
county charters to provide for “[t]he performance of [any]
functions required by statute.” (Dibb, supra, 8 Cal.4th at p. 1217,
fn. 10.) The court expressly did not decide “whether and to what
extent a county charter provision providing for the ‘powers and
duties . . . of county officers’ under section 4(e) supersedes general
state law when such a conflict exists.” (Ibid.)
We draw several lessons from Reuter and Dibb.
Importantly, state laws defining the powers and duties of county
officers and boards of supervisors are not binding on charter
counties; instead, counties may, through their charters, provide
for powers and duties of county officers “different from and
inconsistent with those provided by the general laws.” (Reuter,
supra, 220 Cal. at p. 324.) A county’s right of self-governance by
charter is not without limits, however: (1) the exercise of self-
governance must be “properly grounded on the county’s authority
to provide for the ‘powers and duties’ of its local officers and the
operation of local government” (Dibb, supra, 8 Cal.4th at p. 1211),
and (2) a county may not, through its charter, “incapacitate itself
to perform public functions, the exercise of which has been
delegated to it by the state” (Reuter, at p. 325; Dibb, at p. 1217,
fn. 10).
With this framework in mind, we turn to the Coalition’s
challenges to Measure J.
21
C. Measure J is properly grounded in the County’s
powers pursuant to article XI, sections 4(d) and
(e) to define the powers and duties of the Board
and county officers and to provide for the
performance of functions required by statute.
Los Angeles County is a charter county, and thus it is
entitled to “ ‘home rule in [its] local and county affairs’ ”—that is,
to “create [its] own local government and define its powers within
the limits set out by the Constitution.” (Dibb, supra, 8 Cal.4th at
p. 1218.) The question for us is whether the amendment to the
County charter adopted by Measure J is within these
constitutional limits. 9
The Coalition contends that Measure J is invalid because
the state Constitution does not specifically permit county
charters to address budgeting. But as we have said, Dibb
specifically rejected the contention that “charter counties have
only such authority as is ‘expressly’ conferred by the Constitution
or by statute.” (Dibb, supra, 8 Cal.4th at p. 1213.) Instead, Dibb
explained that the appropriate inquiry is “not whether the
Constitution expressly conferred the specific challenged power,”
but whether “given the Constitution’s text, the challenged power
was ‘authorized.’ ” (Id. at p. 1214, italics added.) Under Dibb,
therefore, the relevant question is not whether the Constitution
expressly confers budgeting authority on counties, but instead
whether Measure J is an authorized exercise of county power.
As to that issue, as noted above, article XI, section 4(e)
provides that county charters “shall provide for . . . [t]he powers
9 The Coalition contends that charter counties have narrower
home rule authority than do charter cities. We do not disagree,
but the point is irrelevant to our analysis.
22
and duties of governing bodies and all other county officers.”
(Italics added.) The amendment enacted by Measure J does
precisely that: It empowers the Board to allocate locally
generated unrestricted revenues in the County’s general fund,
and it provides a framework within which such funds shall be
allocated. In other words, Measure J defines a “power”
(allocating locally generated unrestricted revenues) and a “duty”
(directing 10 percent of such revenues to particular purposes) of
the County’s “governing body” (the Board). Because the
amendment thus is “grounded [in] the county’s authority to
provide for the ‘powers and duties’ of its local officers and the
operation of its local government, it is within the competence of
[its] charter.” (Dibb, supra, 8 Cal.4th at p. 1211.)
The amendment enacted by Measure J also is consistent
with article XI, section 4(d), which says that county charters shall
provide for “[t]he performance of functions required by statute.”
As the Coalition notes, a critically important function assigned by
state statutes to county boards of supervisors is the annual
adoption of county budgets. (See, e.g., § 29000 et seq.) The
amendment guides the Board in this process, describing how a
portion of the County budget shall be allocated. It thus is well
within the County’s right of self-government.
The Coalition urges that Measure J does not provide for a
“power” of the Board within the meaning of article XI, section 4(e)
because it “limits and restricts the most critical duty of the
governing body—the management of the County’s fiscal affairs as
the [Board] deems necessary.” (Italics added.) In other words,
the Coalition posits that because Measure J gives the Board
something less than full discretion over the County budget, it is
outside of the County’s competence under article XI, section 4(e).
23
But the Coalition’s analysis assumes that a charter amendment
may only expand the powers of county officers, not restrict or
reassign those powers. The Coalition cites no authority for this
proposition, and we are not aware of any. Indeed, Reuter
suggests otherwise, holding that San Mateo County could,
through its charter, lawfully transfer jurisdiction over the
county’s public roads and highways from the supervisors to the
county engineer, thus limiting the supervisors’ powers and
duties. (Reuter, supra, 220 Cal. at p. 327.)
Nor is the absence of a reference to the powers of the voters
in article XI, section 4 relevant to our analysis. The Coalition
suggests that Measure J is unconstitutional because “the
Constitution [does not] authorize a county charter to allow
the voters to have any role in appropriating money from the
county general fund or restricting the discretion of the [Board]
over county expenditures.” (Italics added.) But as we have said,
the Constitution provides that a county charter can be amended
only “in the same manner” as it was originally adopted—i.e., by
majority vote of the county’s voters. (Cal. Const., art. XI, § 3,
subd. (a).) Thus, if the scope of a board’s budgeting discretion is a
proper subject of a county charter, county voters must have the
state constitutional right to adopt a charter addressing that
subject.
D. Measure J does not incapacitate the County
from performing any state-delegated public
functions.
The Coalition alternatively contends that Measure J is
unconstitutional because it impairs the exercise of essential
government functions—namely, the management of the County’s
budget, particular in the area of public safety. Specifically, citing
24
County of Butte v. Superior Court (1985) 176 Cal.App.3d 693, 699,
the Coalition urges: “ ‘The budgetary process entails a complex
balancing of public needs in many and varied areas with the
finite financial resources available for distribution among those
demands. It involves interdependent political, social and
economic judgments which cannot be left to individual officers
acting in isolation; rather it is, and indeed must be, the
responsibility of the legislative body to weigh those needs and set
priorities for the utilization of the limited revenues available.’ ”
The amendment adopted by Measure J thus impairs the exercise
of essential government functions, the Coalition urges, because it
hobbles the Board’s ability “to balance the complex and
competing public needs at that time with the finite financial
resources available at that time for distribution among those
competing needs.”
Our Supreme Court addressed—and rejected—a similar
contention in DeVita, supra, 9 Cal.4th 763. DeVita was a
challenge to an initiative approved by the voters of Napa County
that amended the county’s general plan to preserve agricultural
land, and further required that most changes to the general plan
over the next 30 years be submitted to the voters. (Id. at p. 771.)
The plaintiffs challenged the amendment on a variety of grounds,
including that “the rigidity of [the] general plan initiative
amendment frustrates the basic purposes of the planning law” by
“tying the hands of subsequent boards to amend the [general]
plan as conditions warrant.” (Id. at p. 789.) The court disagreed,
concluding that the lack of flexibility created by the amendment
was “not inherently inconsistent with” the planning law. (Ibid.)
The court explained that while “some degree of flexibility is
desirable in the planning process,” it is “also desirable that plans
25
possess some degree of stability so that they can be
‘comprehensive [and] long-term’ guides to local development,”
and the planning law “leaves it largely to each locality to balance
the competing values of flexibility and stability in the planning
process.” (Id. at pp. 789–790.) The court “c[ould] not say” that
the initiative passed by the voters was the best policy for the
county, “[b]ut we also cannot say that the measure, as it comes to
us today, thwarts the basic purposes of the planning law. On the
contrary, it appears to be a reasonable attempt to effectuate those
purposes by delineating a long-range policy intended to guide the
county’s development, curb haphazard growth, and promote
desired land uses.” (Id. at p. 792.)
The same analysis applies here. Like the initiative at issue
in DeVita, Measure J unquestionably restricts the exercise of
budgetary discretion by future Boards, but it also increases
budgetary stability for certain categories of expenditures that are
priorities for County voters. Like the court in DeVita, we cannot
say that a constraint of this kind is desirable, but we also cannot
conclude that it seriously impairs the Board’s exercise of its
essential budgeting functions. Moreover, as the County notes, if
Measure J proves to be unduly constraining, the County is not
without recourse: The Board may, by a four-fifths vote, reduce
the Measure J set-aside in the event of a fiscal emergency, or the
voters may again amend the County charter. (See DeVita, supra,
9 Cal.4th at p. 793 [“We see no reason to suppose that, if [the
initiative] at some point causes the Napa County General Plan to
become inadequate—a scenario that is by no means inevitable—
the electorate will not approve a proper corrective amendment
proposed by the board”]; see also Denham, LLC v. City of
Richmond (2019) 41 Cal.App.5th 340, 356 [court will not presume
26
that, should general plan become obsolete, “the City or, if
necessary, the voters will fail to take appropriate action to correct
the inconsistency”].)
Nor can we conclude, as the Coalition would have us do,
that shifting funds from law enforcement to the other purposes
prescribed by Measure J will impair public safety. This
proposition is not self-evident, and the voters who passed
Measure J appear to have believed otherwise. Indeed, the
arguments in favor of Measure J urged that the measure would
“address the root causes of crime” through restorative justice
programs, counseling and mental health services, job training,
and supportive housing, thus reducing crime. (L.A. County
Official Sample Ballot, Gen. Elec. (Nov. 3, 2020) argument in
favor of Measure J, p. 35.) 10
For all of these reasons, we conclude that Measure J does
not impair the exercise of any essential government function.
III. Measure J does not conflict with state statutory law.
The Coalition’s central contention on appeal is that
Measure J is unconstitutional because it conflicts with state laws
that delegate county budgeting decisions to the Board, not the
voters, on a matter of statewide importance. The Coalition’s
underlying premise is in error: As we have said, Reuter and Dibb
hold that counties may, through their charters, provide for duties
of county officers “different from and inconsistent with those
10 On the court’s own motion, we take judicial notice of the
2020 Los Angeles County ballot materials. (Evid. Code, §§ 452,
subd. (c), 459, subd. (a); see also Broad Beach Geologic Hazard
Abatement Dist. v. 31506 Victoria Point LLC (2022)
81 Cal.App.5th 1068, 1084, fn. 11 [judicially noticing ballot
materials].)
27
provided by the general laws” (Reuter, supra, 220 Cal. at p. 324)
so long as such duties are properly grounded in the county’s
constitutional authority and do not incapacitate the county from
performing its public functions. Thus, even were we to conclude
that Measure J conflicts with state law, we would still find the
initiative valid for the reasons discussed in the prior section. But
in any event, we find no conflict between Measure J and state
statutes.
A. Statutes governing county budgets.
The Coalition has identified three groups of statutes it
contends govern the county budgeting process and reveal an
intent to delegate budgeting decisions to the Board exclusively,
not to the voters. They are as follows:
1. The County Budget Act.
The County Budget Act governs the adoption of county
budgets. It provides that the state controller “shall promulgate
such rules, regulations, and classifications as are deemed
necessary and commensurate with the accounting procedures for
counties . . . to secure standards of uniformity among the various
counties and to carry out the provisions of this chapter.”
(§ 29005, subd. (a).) The controller shall prescribe “the forms
required to be used in presenting the required information in the
budget document,” but “[a]ny county may add to the information
required, or display it in more detail, provided that the financial
information and the classifications or items required to be
included in the budget are clearly and completely set forth.”
(Id., subd. (b).)
Articles 2 through 4 of the County Budget Act set out the
procedures by which a board of supervisors shall adopt a budget.
28
These articles provide that on or before June 10 of each year,
each official in charge of a budget unit shall submit a budget
request (§ 29040), and the auditor shall provide estimates for
bonded debt service requirements (§ 29043) and estimated
financing sources (§ 29044). The administrative officer or auditor
shall compile the budget requests (§ 29060) and prepare a
recommended budget (§ 29061), which shall be submitted to the
board by June 30 (§ 29062). Thereafter, the board shall conduct a
public hearing (§§ 29080–29082), at the conclusion of which, and
after making any revisions of, deductions from, or increases or
additions to, the recommended budget it deems appropriate, the
board shall adopt a final budget (§ 29088).
2. Sections 30603–30608.
Sections 30603 through 30608 provide that the County of
Los Angeles “shall annually submit its proposed budget to the
Governor, the Legislature, and the State Auditor, including
estimated actual expenditures and revenues for the current year”
(§ 30603), and “shall, for each program in the budget, provide
actual expenditure data to enable comparison of actual
expenditures with the current estimated and proposed levels”
(§§ 30603, 30604). Thereafter, the state Legislative Analyst
“shall conduct a review” and “mak[e] recommendations”
concerning “[c]ounty operations that will minimize future county
fiscal emergencies and promote long-term fiscal viability.”
(§ 30608.)
3. Section 26227.
Section 26227 provides, in relevant part: “The board of
supervisors of any county may appropriate and expend money
from the general fund of the county to establish county programs
29
or to fund other programs deemed by the board of supervisors to
be necessary to meet the social needs of the population of the
county, including but not limited to, the areas of health, law
enforcement, public safety, rehabilitation, welfare, education, and
legal services, and the needs of physically, mentally and
financially handicapped persons and aged persons.”
B. Partial preemption by state delegation to a
local “legislative body.”
The County contends that because the statutes described
above give budget responsibilities to “the board of supervisors,”
they preclude the voters from adopting binding budget priorities
that limit the exercise of the Board’s discretion. For the reasons
that follow, we disagree.
Our Supreme Court addressed a similar contention in
DeVita, supra, 9 Cal.4th 763. As noted above, DeVita was a
challenge to a voter-adopted amendment to a county’s general
plan that permitted future changes to the general plan only with
voter approval. Several county residents challenged the
measure, asserting that general plans could not be amended by
initiative, and the authority of future boards of supervisors to
amend the general plan could not be limited by mandatory voter
approval requirements. (Id. at pp. 771–772.) In support, the
plaintiffs noted that the state planning law, sections 65100 to
65763 (planning law), delegated the amendment of a general plan
to the “legislative body”: It provided that the “legislative body”
must refer any proposed amendment to various public entities;
the planning commission must make a written recommendation
on any proposed amendment to the “legislative body”; the
“legislative body” must hold at least one public hearing and by
resolution either approve, modify, or disapprove the
30
recommendation; and the “legislative body” may amend all or
part of the general plan “ ‘[i]f it deems it to be in the public
interest.’ ” (Id. at pp. 773–774 & fn. 4.) The plaintiffs contended
that because these provisions required general plan amendments
to be approved by “the legislative body,” they revealed a
legislative intent to bar voter amendments to the general plan.
(Id. at p. 785.)
The Supreme Court rejected the plaintiffs’ challenge,
concluding that the planning law did not reveal a legislative
intent to exclude the electorate from amending the general plan.
(DeVita, supra, 9 Cal.4th at pp. 779–780.) The court explained
that absent a clear showing of the Legislature’s intent to the
contrary, legislative decisions of a board of supervisors are
presumed to be subject to the voters’ exercise of initiative and
referendum. 11 (Id. at p. 775.) That presumption is rebuttable,
however, “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.”
11 “The initiative power allows voters to propose new
measures and place them on the ballot for a popular vote. If the
measure is approved by popular vote, it becomes law. (Cal.
Const., art. II, §§ 8; 10, subd. (a).) The referendum power, by
contrast, allows voters to weigh in on laws that have already
been passed by their elected representatives. Any voter or group
of voters that gathers enough signatures can place a legislative
enactment on the ballot for an up or down vote. A referendum
suspends operation of the law until it is approved by a majority of
voters. (Cal. Const., art. II, §§ 9, subd. (a),10, subd. (a); see City
of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, 1078 [(City of
Morgan Hill)].)” (Wilde v. City of Dunsmuir (2020) 9 Cal.5th
1105, 1111.)
31
(DeVita, supra, 9 Cal.4th at p. 776.) A “definite indication” may
be found either where a local legislative body’s discretion has
been fully preempted by statutory mandate or where the
Legislature “did not intend to restrict local legislative authority
but rather to delegate the exercise of that authority exclusively to
the governing body.” (Ibid., italics added.)
The court noted that in Committee of Seven Thousand v.
Superior Court (1988) 45 Cal.3d 491, 504 (COST), it had set out
certain guidelines for determining when a legislative intent to
exclusively delegate authority to the local governing bodies is
present. The paramount factors recognized by COST were:
(1) “statutory language, with reference to ‘legislative body’ or
‘governing body’ deserving of a weak inference that the
Legislature intended to restrict the initiative and referendum
power, and reference to ‘city council’ and/or ‘board of supervisors’
deserving of a stronger one”; (2) “the question whether the subject
at issue was a matter of ‘statewide concern’ or a ‘municipal
affair,’ with the former indicating a greater probability of intent
to bar initiative and referendum”; and (3) “[a]ny other indications
of legislative intent.” (DeVita, supra, 9 Cal.4th at p. 776.) The
DeVita court noted, however, that while COST “brought to light
certain interpretive principles implicit in case law,” it did not
“prescribe a set of fixed rules for mechanically construing
legislative intent” or “alter the constitutionally based
presumption that the local electorate could legislate by initiative
on any subject on which the local governing body could also
legislate.” (Id. at p. 777.) Thus, the court explained, “it is still
the case that ‘ “ ‘[i]f doubts can [be] reasonably resolved in favor
of the use of [the] reserve initiative power, courts will preserve
it.’ ” ’ ” (Ibid.)
32
In the case before it, the court said that although the
planning law delegated authority to amend the general plan to
the “legislative body,” this language “is by itself inconclusive on
the question of exclusive delegation.” (DeVita, supra, 9 Cal.4th at
p. 780.) It explained: “[The planning law does], it is true, refer to
the ‘legislative body’ adopting and amending general plans. But
as we observed in COST: ‘[m]any powers conferred by statute on
the “legislative body” of a local entity have been held to be subject
to initiative and referendum.’ [Citations.] COST does not hold
that the use of the generic terms ‘legislative body’ or ‘governing
body’ in a statute is alone sufficient to dispel the presumption in
favor of the local right of initiative and referendum.” (Ibid.)
The court explained that the next step in discerning the
Legislature’s intent was to look to “whether and to what extent
the statute or statutory scheme in question pertains to matters of
statewide concern.” (DeVita, supra, 9 Cal.4th at p. 780.) The
court noted that an intent to exclude voter action is more readily
inferred if a statute addresses a matter of statewide concern
rather than a purely municipal affair because “[o]nly in matters
that transcend local concerns can the Legislature have intended
to convert the city and county governing bodies into its exclusive
agents for the achievement of a ‘legislative purpose of statewide
import.’ ” (Ibid.) The court cautioned, however, that courts
should not “automatically infer that a statutory scheme restricts
the power of initiative or referendum merely because some
elements of statewide concern are present.” (Id. at pp. 780–781.)
To the contrary, “it is erroneous to assume that a statute or
statutory scheme that both asserts certain state interests and
defers in other respects to local decisionmaking implies a
legislative intent to bar the right of initiative.” (Id. at p. 781.)
33
Instead, courts “must inquire concretely into the nature of the
state’s regulatory interests to determine if they are
fundamentally incompatible with the exercise of the right of
initiative or referendum, or otherwise reveal a legislative intent
to exclusively delegate authority to the local governing body.”
(Id. at p. 781.)
As relevant to the case before it, DeVita noted that while
the planning law placed some minimal regulation on local
planning, it left most land use decisions in the hands of cities and
counties. (DeVita, supra, 9 Cal.4th at p. 782.) It explained: “The
minimal regulation set forth in the planning law requires cities
and counties to adopt a general plan with certain mandatory
elements that will generally govern ‘the future development,
configuration and character of the city or county and require that
future land use decisions be made in harmony with that general
plan. [¶] . . . [¶] . . . [¶] Except for mandating the development
of a plan, specifying the elements to be included in the plan, and
imposing on the cities and counties the general requirement that
land use decisions be guided by that plan, the Legislature has not
preempted the decision making power of local legislative bodies
as to the specific contours of the general plan or actions taken
thereunder.’ ” (Id. at pp. 782–783.) Instead, section 65700,
subdivision (a), by making clear that the planning law only
applies certain minimal requirements to the general plans of
charter cities, leaves “ ‘wide discretion to a local government . . .
to determine the contents of its land use plans.’ ” (DeVita, at
pp. 784, 783, italics added.) Under these circumstances, the court
found no implied limitation in the planning law prohibiting the
voters from amending a general plan. (Id. at p. 783.)
34
The DeVita court then considered and rejected a number of
the plaintiffs’ contentions. Noting that general plan amendments
may have effects outside the county’s borders in such areas as
housing and traffic circulation, the plaintiffs urged that the
Legislature must have intended to preclude voters from
amending a general plan. (DeVita, supra, 9 Cal.4th at p. 784.)
This contention, the court said, “misreads prior case law. The
probability that general plan amendments will have regional or
statewide impacts certainly supports the contention that the
Legislature possesses the constitutional authority to limit the
power of initiative in this area if it chose to do so. [Citation.] But
whether the Legislature actually intended to limit the power of
initiative is another matter. Our examination of the planning
law, with its deference to local autonomy, leads us to the
conclusion that the Legislature had no such intention, and that
therefore the land use element of a general plan can be amended
by initiative.” (Ibid., second italics added.)
The plaintiffs next contended that an intent to bar
amendments to the general plan by initiative should be inferred
from the numerous procedural requirements for adopting and
amending general plans. (DeVita, supra, 9 Cal.4th at p. 785.)
The court disagreed, pointing to prior cases that “exemplify the
rule that statutory procedural requirements imposed on the local
legislative body generally neither apply to the electorate nor are
taken as evidence that the initiative or referendum is barred.”
(Id. at p. 786.) This rule, the court said, “is a corollary to the
basic presumption in favor of the electorate’s power of initiative
and referendum. When the Legislature enacts a statute
pertaining to local government, it does so against the background
of the electorate’s right of local initiative, and the procedures it
35
prescribes for the local governing body are presumed to parallel,
rather than prohibit, the initiative process, absent clear
indications to the contrary.” (Ibid.)
The court considered, finally, the plaintiffs’ assertion that
the initiative would permit the general plan to become obsolete.
The court disagreed: “It is of course conceivable that the Napa
County General Plan will, as the result of [the initiative], fall so
far behind changing local conditions that the County will fail to
fulfill an implied statutory duty to keep its general plan current.
[Citation.] . . . We should not presume—nor, given the rule that
doubts should be resolved in favor of the initiative and
referendum power, should we assume the Legislature
presumed—that the electorate will fail to do the legally proper
thing. We see no reason to suppose that, if [the initiative] at
some point causes the Napa County General Plan to become
inadequate—a scenario that is by no means inevitable—the
electorate will not approve a proper corrective amendment
proposed by the board. If, down the road, the electorate fails to
act appropriately, courts may then be asked to intervene to
remedy deficiencies in the general plan, as they would likely act
if the board itself failed to properly revise the general plan. But
we cannot infer from the mere possibility that such deficiencies
may occur an intent to categorically ban general plan amendment
initiatives.” (DeVita, supra, 9 Cal.4th at pp. 792–793.)
C. The statutes cited by the Coalition do not
preclude the voters from adopting a budgetary
framework that binds that Board.
The Coalition urges that because the statutes described
above assign duties to “the board of supervisors,” there is
“ ‘strong’ evidence of the Legislature’s intent to exclusively
36
delegate all budgeting decisions to the [Board] and those County
officials specifically directed to undertake budgeting activities.”
Not so. It is true, as the Coalition notes, that our Supreme Court
said in COST that “the Legislature’s use of the terms ‘board of
supervisors’ and ‘city council’ . . . gives rise to a strong inference
that the Legislature intended to preclude exercise of the
statutory authority by the electorate.” (COST, supra, 45 Cal.3d
at p. 505.) The court subsequently clarified in DeVita, however,
that while COST “brought to light certain interpretive principles
implicit in case law,” it did not “prescribe a set of fixed rules for
mechanically construing legislative intent” or “alter the
constitutionally based presumption that the local electorate could
legislate by initiative on any subject on which the local governing
body could also legislate.” (DeVita, supra, 9 Cal.4th at p. 777.)
And, even more recently, in California Cannabis Coalition v. City
of Upland (2017) 3 Cal.5th 924, 945–946, the Supreme Court said
that absent “an unambiguous indication that a provision’s
purpose was to constrain the initiative power,” a reviewing court
should “not construe it to impose such limitations.” (Italics
added; see also City of Morgan Hill, supra, 5 Cal.5th at pp. 1078–
1079 [“We only find local application of the public’s power of
referendum or initiative preempted if there is a ‘definite
indication’ or a ‘ “clear showing” ’ that it was within the ambit of
the Legislature’s purpose to restrict those rights”].)
We do not find such an “unambiguous indication” in the
Legislature’s references to “board of supervisors” in the County
Budget Act and related statutes. As intervenors correctly note,
unlike many state laws that apply equally to city and county
governments, the County Budget Act applies only to counties,
specifying the procedures that county boards of supervisors must
37
follow in adopting a budget. (See, e.g., § 29002 [County Budget
Act “shall apply to counties, dependent special districts, and
other agencies whose affairs and finances are under the
supervision and control of the board”].) In light of the County
Budget Act’s scope and purpose, it is unsurprising that the
Legislature uses the term “board” since there is no other local
legislative or governing body that could enact a county budget.
In contrast, the planning law at issue in DeVita used the more
generic term “legislative body” because it applied to both cities
and counties. (DeVita, supra, 9 Cal.4th at p. 773 [planning law
compels creation of general plan by “cities and counties”].) We
therefore do not perceive the references to the “board of
supervisors” in the County Budget Act to be a useful indicator of
the Legislature’s intent with regard to exclusive delegation. (See
Pettye v. City and County of San Francisco (2004)
118 Cal.App.4th 233, 245 (Pettye) [Welf. & Inst. Code, § 17001,
which directed that standards of aid for general assistance
recipients should be adopted by “[t]he board of supervisors of
each county, or the agency authorized by county charter,” was
“inconclusive” as to whether the Legislature intended to preclude
changes to county general assistance standards by voters].)
Further, even were we to conclude that the statutory
reference to “board of supervisors” implied an exclusive
delegation, we still would find no conflict between the County
Budget Act and Measure J because the measure does not allow
the electorate to exercise any of the powers or duties the County
Budget Act grants to the Board. As we have described, the
County Budget Act requires the Board to consider the
recommended budget submitted by the CEO or auditor, make a
proposed budget publicly available, hold public hearings, and
38
adopt a final budget. (§§ 29063, 29064, 29082, 29088.) Nothing
in Measure J precludes the Board from undertaking any of these
duties. To the contrary, Measure J specifically provides that it
“shall be the duty of the Board of Supervisors” to allocate the
County’s “locally generated unrestricted revenues in the general
fund . . . as determined annually in the budget process” after
considering input from the public and county departments at
public hearings. (Italics added.) In short, Measure J neither
purports to delegate to the voters the task of adopting a budget
nor seeks to prevent the Board from doing so.
Similarly, Measure J does not preclude the county auditor
or CEO from undertaking any of their statutory duties, including
“compil[ing] the budget requests” (§ 29060), “review[ing] the
budget requests and prepar[ing] a recommended budget,” noting
any differences “in the written recommendations or comments, or
both” (§ 29061), and “submitt[ing]” the recommended budget to
the board of supervisors (§ 29062). Indeed, Measure J does not
reference the auditor or CEO in any fashion, nor does it purport
to reassign to others the tasks delegated by the County Budget
Act to the auditor and CEO.
Measure J’s only arguable statutory conflicts are with
section 29088, which provides that “after making any revisions
of, deductions from, or increases or additions to, the
recommended budget it deems advisable during or after the
public hearing, the board shall by resolution adopt the budget as
finally determined,” and section 26227, which says that “[t]he
board of supervisors of any county may appropriate and expend
money from the general fund of the county to establish county
programs or to fund other programs deemed by the board of
supervisors to be necessary to meet the social needs of the
39
population of the county.” (Italics added.) The Coalition urges
that Measure J is inconsistent with these sections because it
precludes the Board from making budgetary changes it “deems
advisable” or “deem[s] . . . necessary” if that decision conflicts
with Measure J.
There can be no doubt that the charter amendment adopted
by Measure J constrains to some degree the Board’s discretion in
allocating County funds. But that was equally true in DeVita,
where one of the statutory provisions at issue stated that the
“legislative body” may amend all or part of the general plan if
“it”—presumably, the legislative body—“ ‘deems it to be in the
public interest.’ ” (DeVita, supra, 9 Cal.4th at p. 773, fn. 4.)
Notwithstanding this provision, the court concluded that the
statute was “inconclusive on the question of exclusive delegation.”
(Id. at p. 780.)
Measure J does not limit the Board’s discretion to any
greater extent than did the initiative considered in DeVita.
Indeed, Measure J has far less impact on Board discretion than
did that initiative. The DeVita initiative provided that the
county’s general plan could be amended only by the voters,
notwithstanding a state statute giving authority to amend
county general plans to “the legislative body.” (DeVita, supra,
9 Cal.4th at pp. 773, 771.) In other words, the initiative
considered in DeVita entirely deprived the board of supervisors of
the power granted it by statute to amend the general plan.
Measure J constrains Board discretion to a far less significant
degree: While Measure J requires the Board to direct a portion of
County revenues to particular categories of programs—for
example, to job training, rental assistance, transitional and
supportive housing, youth programs, and health, mental health,
40
and substance abuse programs—it leaves all of the ultimate
spending decisions to the Board. Within the broad parameters
imposed by Measure J, therefore, the Board continues to have
sole discretion to decide which County programs will receive
funding and in what amounts.
For all of these reasons, we conclude that the statutes on
which the Coalition relies do not reveal a legislative intent to
exclusively delegate the setting of county budgetary priorities to
the Board.
D. The state’s interests are not incompatible with
permitting voters to set County budget
priorities for locally generated unrestricted
revenue.
Although it is unnecessary to our decision, we briefly
consider whether the state’s interests are incompatible with
Measure J. (DeVita, supra, 9 Cal.4th at p. 781.) The Coalition
makes two contentions in this regard: (1) the state has an
interest in county budgeting generally; and (2) the state has an
interest in county public safety expenditures specifically. As we
discuss, these contentions lack merit.
1. State interest in county budgeting
generally.
The Coalition urges that Measure J implicates state
interests because the state has an interest in county budgeting
generally. We agree in part: Particularly in view of its large size,
Los Angeles County’s budgetary decisions undoubtedly have
some regional and statewide impacts. (DeVita, supra, 9 Cal.4th
at p. 784.) But as DeVita explained, while impacts outside county
borders may support a conclusion that the Legislature possesses
41
the constitutional authority to limit the power of initiative in this
area if it chooses to do so, “whether the Legislature actually
intended to limit the power of initiative is another matter.”
(Ibid., italics added.) In other words, voters cannot be deprived of
the exercise of direct democracy on local matters merely because
the state has a theoretical interest in the subject of the
initiative—rather, the state must have demonstrated that
interest legislatively.
DeVita cautioned, moreover, that “it is erroneous to assume
that a statute or statutory scheme that both asserts certain state
interests and defers in other respects to local decisionmaking
implies a legislative intent to bar the right of initiative.” (DeVita,
supra, 9 Cal.4th at p. 781.) There, as we have said, the court
considered a statute that “specif[ied] the elements to be included
in the plan, and impos[ed] on the cities and counties the general
requirement that land use decisions be guided by that plan,” but
“le[ft] wide discretion to a local government . . . to determine the
contents of its land use plans.” (Id. at p. 783.) Under those
circumstances, the DeVita court said, the freedom given counties
to make substantive planning decisions “belies the claim that the
Legislature intended to delegate the general plan amendment
authority exclusively to local governing bodies in order to fulfill
the statewide objectives of the planning law.” (Id. at p. 784.)
The court similarly concluded in Pettye, supra,
118 Cal.App.4th at pp. 246–247. The statute at issue in that case
required counties to provide general assistance benefits to
indigent populations, but conferred broad discretion on counties
to set local general assistance standards. That discretion was
inconsistent with a legislative intent to preclude the exercise of
initiative and referendum, the court concluded. It explained that
42
although the provision of general relief (the “overarching ‘macro’
policy”) was unquestionably a matter of statewide concern, the
Legislature had “also conferred broad discretion upon local
governments to promulgate local, ‘micro’ policies in furtherance of
this statewide mandate,” such that within the overall state
guidelines, counties “retain[ed] extensive authority to set
[general relief] standards on matters ranging from eligibility to
type and amount of relief and conditions attached thereto.” (Id.
at p. 245.) In view of the “ample leeway for local variation in
[general assistance] programs, leaving substantial autonomy in
the hands of counties to craft [general assistance] programs to
meet community needs,” the court concluded that “it matters not
to the Legislature whether [general assistance] standards are
adopted by the board of supervisors or the voters.” (Id. at
pp. 246–247; see also Empire Waste Management v. Town of
Windsor (1998) 67 Cal.App.4th 714, 716–717, 722 [provision of
the Integrated Waste Management Act giving “the governing
body of the local governmental agency” the authority to grant an
exclusive franchise for solid waste handling services did not
abrogate citizens’ right to vote on whether to repeal a long-term
extension of the franchise granted by their municipal council
because the statewide regulatory scheme “makes ample
allowance for local variation”].)
Like the statutes considered in DeVita and Pettye, the
County Budget Act sets some general parameters for county
budgeting, but leaves the substance of budget allocations entirely
to individual counties. For example, section 29005 requires the
state controller to promulgate accounting rules “to secure
standards of uniformity among the various counties”; sections
29006 to 29009 set out the manner in which counties shall report
43
budget data; and sections 29040 to 29093 set out the procedural
requirements governing the submission and review of
departmental budget, conduct of public hearings, and adoption of
final budgets. The Act’s parameters thus are directed almost
exclusively towards standardizing the dates by which county
budgets are adopted and the manner in which they are
reported—not the purposes to which the budgets are put. In fact,
these provisions do not provide any substantive guidance about
the kinds of programs that counties must fund or the levels at
which they must do so. To paraphrase DeVita, therefore, we
conclude that the freedom given counties to make substantive
budgetary decisions belies the claim that the Legislature
intended “to delegate [the setting of budget priorities] exclusively
to local governing bodies in order to fulfill the statewide
objectives of the [County Budget Act].” (DeVita, supra, 9 Cal.4th
at p. 784.)
2. State interest in county public safety
expenditures.
The Coalition also contends that Measure J is a matter of
statewide importance because the state has a strong interest in
County public safety expenditures. In support, the Coalition
notes that (1) pursuant to section 30056, the Public Safety
Augmentation Fund is “a matter of statewide concern,”
(2) article XIII, section 35, subdivision (a)(1) of the California
Constitution provides that “[p]ublic safety services are critically
important to the security and well-being of the State’s citizens
and to the growth and revitalization of the State’s economic
base,” (3) article XIII, section 35, subdivision (a)(2) states that
“[t]he protection of the public safety is the first responsibility of
local government and local officials have an obligation to give
44
priority to the provision of adequate public safety services,” and
(4) article I, section 28, subdivision (a) states that “[t]he rights of
victims of crime and their families in criminal prosecutions are a
subject of grave statewide concern.”
We do not dispute that the state has an interest in public
safely generally, but that is not enough to support a conclusion
that the Legislature intended to bar the right of local initiative in
this area. (See Reuter, supra, 220 Cal. at p. 325 [state’s “general
interest” in roads and highways insufficient for state to dictate
duties of particular individuals relating to highway safety and
repair].) Instead, the Coalition must demonstrate that
Measure J interferes with the state’s regulatory interests as
expressed by statute. It manifestly has not done so.
Items 1 through 3 above all relate to Proposition 172, which
California voters approved in 1993. Proposition 172 (codified as
article 13, section 35 of the California Constitution) imposed a
statewide sales and use tax “to assist local government in
maintaining a sufficient level of public safety services,” which
was declared to be “critically important to the security and well-
being of the State’s citizens and to the growth and revitalization
of the State’s economic base.” (Cal. Const., art. XIII, § 35,
subds. (a)(3), (a)(1).) The Legislature then enacted sections 30051
to 30055, which distributed the Proposition 172 sales tax
revenues to counties and cities. (§§ 30054, 30055; see also City of
Scotts Valley v. County of Santa Cruz (2011) 201 Cal.App.4th 1,
17, fn. 12 [discussing Proposition 172].) Section 30055 requires
each county to create “a Public Safety Augmentation Fund in the
county treasury to receive those revenues allocated to the county
pursuant to Sections 30052 and 30053,” and further requires that
amounts deposited in the Public Safety Augmentation Fund
45
“shall be expended exclusively to fund public safety services.”
Pursuant to section 30056, “the allocation of the Public Safety
Augmentation Fund is a matter of statewide concern and is not
merely a municipal affair or a matter of local interest.”
The legislative declarations about the state’s interest in
public safety services on which the Coalition relies, therefore, are
not abstract declarations of principle, but relate concretely to the
state’s collection and distribution of sales tax revenues pursuant
to Proposition 172. The revenues subject to Measure J are not
Proposition 172 funds; as we have said, Measure J facially
concerns only funds that are both “locally generated” (i.e., not
transferred by the state) and “unrestricted” (i.e., not subject to
Proposition 172 restrictions). These legislative statements,
therefore, are irrelevant to the County revenues that are subject
to Measure J.
Item 4 above derives from Proposition 9, which the voters
approved in 2008. Titled the “Victims’ Bill of Rights Act of 2008,”
Proposition 9 made significant changes to the parole process and
created many new substantive rights for crime victims and their
families, including the rights to notice of, and to be heard at, all
proceedings involving the defendant, and to be informed of a
defendant’s scheduled release date. (Cal. Const., art. I, § 28,
subd. (b); Pen. Code, §§ 3041.5–3044.) The Coalition has not
suggested that the rights enumerated in Proposition 9 will be in
any way imperiled by Measure J, or indeed that any Measure J
funds support Proposition 9 programs. The legislative
statements adopted as part of Proposition 9, therefore, appear
irrelevant to County revenues subject to Measure J.
In short, while the state unquestionably has an interest in
public safety generally, it has not acted on that interest
46
legislatively by mandating expenditures of county locally
generated unrestricted revenues. Instead, it has left the
disposition of those funds to the counties themselves. We
therefore cannot conclude that Measure J imperils any state
regulatory interest related to public safety.
E. The cases the Coalition relies on do not compel
a different result.
The Coalition’s appellate brief relies heavily on Totten,
supra, 139 Cal.App.4th 826, which concerned the validity of an
initiative adopted by the voters of Ventura County that the
Coalition says “is the inverse of the Charter amendment here.”
The Ventura County initiative created a trust fund to receive
Proposition 172 revenues, specified the amounts to be allocated to
five public safety agencies (the district attorney, sheriff,
corrections department, public defender and fire protection
district) for the 1995–1996 fiscal year, and provided that
subsequent year budgets for those agencies must be, at a
minimum, 100 percent of the 1995–1996 budget “plus any
associated inflationary costs.” (Id. at p. 832.) For several years,
Ventura County’s board of supervisors interpreted “associated
inflationary costs” to mean the actual increase in the costs of
delivering services, but in 2001, the board decided to key
inflationary costs to the consumer price index. (Ibid.) Ventura
County public safety officials sought a writ of mandate
compelling the board to abide by its pre-2001 interpretation of
“any associated inflationary costs,” and the board moved for
summary adjudication on the issue of whether the provisions
requiring minimum budgets for public safety agencies were
invalid because they impaired the board’s authority over the
county budget. (Id. at p. 833.)
47
The appellate court concluded that the budget provisions
were prohibited by state law and struck them. It noted that the
County Budget Act delegates budgetary authority to the “board,”
which the court said gives “rise to a strong inference that the
Legislature intended to preclude the electorate from exercising
authority over the adoption of a county budget.” (Totten, supra,
139 Cal.App.4th at p. 835.) The court further found that county
budgets for public safety agencies “are of particular statewide
concern” because they involve the use of state funds provided
pursuant to Proposition 172, the allocation of which the
Legislature had expressly declared to be “ ‘a matter of statewide
concern and . . . not merely a municipal affair or a matter of local
interest.’ ” (Totten, at p. 836.) And, since county budgets for
public safety agencies constitute a major portion of county
spending, they “are of statewide concern because they may affect
a county’s ability to adequately fund state-mandated programs
unrelated to public safety.” (Ibid.)
Totten is distinguishable in important ways from the
present case. Significantly, Los Angeles is a charter county, and
thus it has far more discretion over the management of its
internal affairs than does Ventura County, a “general law”
county. (See section II, ante.) Further, the initiative at issue in
Totten specified budgets for five county agencies in perpetuity,
thus depriving the Ventura County board of supervisors of any
discretion over what was 58 percent of the county’s total revenues
in 2001, and was expected to grow rapidly over time. (Totten,
supra, 139 Cal.App.4th at p. 832.) 12 In other words, the initiative
12 The Coalition repeatedly suggests that just $4.2 million
was at issue in Totten. In fact, $4.2 million was the estimated
48
considered in Totten effectively allowed the voters to directly
allocate a majority of Ventura County’s budget. In contrast,
while Measure J directs a percentage of Los Angeles County’s
budgets to broad categories of programs, it does not require the
Board to fund any particular programs, nor does it direct the
levels at which new or existing programs must be funded. In
other words, while it constrains the Board’s discretion to some
degree, it does not give the voters ultimate decision-making
authority over how County revenues will be allocated as did the
initiative at issue in Totten.
Finally, unlike the initiative at issue in Totten, Measure J
concerns only “unrestricted revenues in the general fund” (italics
added)—that is, revenues not subject to state mandate or needed
to implement state-mandated programs. And, Measure J
includes an opt-out provision, permitting the Board, by a four-
fifths vote, to reduce the set-aside if a fiscal emergency threatens
the county’s ability to fund mandated programs.
Citizens for Jobs and the Economy v. County of Orange
(2002) 94 Cal.App.4th 1311 (Citizens) is also distinguishable from
the present case. Citizens concerned Measure A, passed in 1994,
and Measure F, passed in 2000. Measure A authorized the
amendment of Orange County’s general plan to allow the
development of a commercial airport on the former Marine Corps
Air Station at El Toro (MCAS El Toro), while Measure F provided
that any approval by the county of a civilian airport project, and
any expenditure by the county in connection therewith, had to be
reduction in the public safety budget for the 2001–2002 fiscal
year if the consumer price index was used to calculate
inflationary costs—not the total amount restricted by the
ordinance. (Totten, supra, 139 Cal.App.4th at p. 832.)
49
ratified by two-thirds of county voters at a county general
election following extensive public hearings. (Id. at pp. 1317–
1321.) The trial court granted a writ of mandate precluding the
county from implementing Measure F, finding that the measure
interfered with essential government functions by placing
“numerous constraints and roadblocks” on the process of
developing a civilian airport as had been directed by the passage
of Measure A, and further violated provisions of the Government
Code that delegated to the board the authority to carry out
planning actions relating to reuse of MCAS El Toro. (Id. at
pp. 1329–1330, 1333.) The Court of Appeal affirmed, finding that
Measure F “fails the test for an initiative that may properly
circumscribe the power of future governing bodies, by requiring
voter approval for certain future proposals, if such an initiative
simply amounts to a legislative measure that the governing body
could itself have enacted.” (Citizens, at p. 1334.) This was so, the
court said, because “[t]he voter approval and spending
restrictions contained in Measure F do not set new substantive
land use policies, but instead make it difficult or impossible for
the Board to carry out already established policy that the airport
project should be fully investigated at least for planning
purposes.” (Ibid.)
Measure J is distinguishable from the initiative at issue in
Citizens. Significantly, Measure J does not interfere with
essential government functions by placing “constraints and
roadblocks” on duties mandated by state and federal law, nor
does it “make it difficult or impossible for the Board to carry out
already established policy.” (Citizens, supra, 94 Cal.App.4th at
pp. 1329, 1334.) Instead, Measure J “set[s] new substantive . . .
policies” in the area of County spending, thus “properly
50
circumscrib[ing] the power of future governing bodies.” (Citizens,
at p. 1334, italics added.)
Finally, the present case is distinguishable from Golightly
v. Molina (2014) 229 Cal.App.4th 1501. The issue presented in
Golightly was whether the procedure by which the County enters
into social program agreements (SPAs) with social services
organizations that provide services to county residents is subject
to the Brown Act, which imposes open meeting requirements on
legislative bodies. (Id. at p. 1505.) The court held that the
Brown Act did not apply to the SPA approval process because the
four individuals who reviewed and signed SPAs (the Board’s
executive officer, county counsel, county auditor, and county
CEO) “do not constitute a legislative body and do not deliberate
collectively in approving an SPA.” (Ibid.) Plainly, Golightly does
not govern our decision here.
51
DISPOSITION
The judgment is reversed. The trial court is directed to
enter a new judgment denying the petition for writ of mandate.
Appellants shall recover their appellate costs.
EDMON, P. J.
We concur:
ADAMS, J.
HEIDEL, J.
52
Filed 7/31/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
COALITION OF COUNTY UNIONS, B314973
et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. 20STCP04019)
v. ORDER MODIFYING AND
CERTIFYING OPINION FOR
LOS ANGELES COUNTY BOARD OF PUBLICATION
SUPERVISORS, et al.,
NO CHANGE IN APPELLATE
Defendants and Appellants; JUDGMENT
RE-IMAGINE LOS ANGELES
COUNTY COALITION, et al.,
Intervenors and Appellants.
THE COURT:
1. The opinion was not certified for publication in the
Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports, and it is so ordered.
2. On page 52, of the opinion, on the disposition page,
insert an asterisk after HEIDEL, J. and add a footnote that
reads: “*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.”
____________________________________________________________
EDMON, P. J. ADAMS, J. HEIDEL, J. *
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
2