Baldwin Park Police Officers Association v. City of Baldwin Park, B215477 (Cal. App. 9/25/2009), B215477

• Decision Date: 25 September 2009
• Docket Number: B215477
• Parties: BALDWIN PARK POLICE OFFICERS ASSOCIATION et al., Plaintiffs and Appellants, v. CITY OF BALDWIN PARK, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

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BALDWIN PARK POLICE OFFICERS ASSOCIATION et al., Plaintiffs and Appellants, v. CITY OF BALDWIN PARK, Defendant and Respondent.

B215477

Court of Appeals of California, Second Appellate District, Division Five

September 25, 2009

Not to be Published in the Official Reports

Appeal from a judgment of the Superior Court of Los Angeles County, No. BS117634, David Yaffe, Judge. Affirmed.

Lackie, Dammeier &McGill, Dieter C. Dammeier and Russell M. Perry for Plaintiffs and Appellants.

Aleshire & Wynder, Joseph W. Pannone and Douglas P. Haubert for Defendant and Respondent.

TURNER, P. J.

I. INTRODUCTION

Plaintiffs, the Baldwin Park Police Officers Association and Vivian Olivas, appeal from a March 24, 2009 judgment denying their mandate petition. (Code Civ. Proc., § 1085.) We conclude plaintiffs have not met their burden to show error on appeal. Accordingly, we affirm the judgment.

II. BACKGROUND

Plaintiffs filed a mandate petition court on October 29, 2008. Plaintiffs sought to compel the City Council of the City of Baldwin Park to enact a police department employee salary and benefits initiative or to place the measure before the voters on the November 3, 2009 ballot. (Elections Code, § 9215.) The initiative would require the city to: conduct an annual survey of salaries paid and benefits provided to police department employees in 10 enumerated cites; compensate its police department employees at a level not less than the average paid by the surveyed cities; prevent the city from allowing its "budgeted positions" to fall below the level budgeted for in 2004-2005; prohibit the city from contracting out for general police services without prior voter approval; and permit the city to modify compensation and benefits with the Baldwin Park Police Officers Association's agreement.¹ The trial court found the proposed initiative was invalid because it delegated the power to fix compensation to the enumerated cities in violation of Government Code section 36506 and it impaired the city council's power and duty to control its budget. The trial court further found the city could not be compelled to enact, or to permit the voters to enact, an invalid measure.

On October 27, 2008, two days before plaintiffs' filed their mandate petition, the city filed a declaratory relief action. (City of Baldwin Park v. Bermudez (Super. Ct. L.A. County, No. BC400748.) That action has been stayed pending the outcome of this appeal.

III. DISCUSSION

A. Standard of Review

Code of Civil Procedure section 1085, subdivision (a) provides, "A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person." Under Code of Civil Procedure section 1086: "The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested." There are two requirements for a writ of mandate to issue. First, there must exist a clear, present and usually ministerial duty upon the part of the defendant. Second, there must exist a clear, present and beneficial right of the plaintiff to the performance of that duty. (City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 925; Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 618.) Mandate may not be used to control a body to exercise discretion in a particular manner. (Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1002; Morris v. Harper (2001) 94 Cal.App.4th 52, 62.) Moreover, it is well-established that mandate does not lie to compel the performance of any act that violates a statute, is illegal, aids an unlawful purpose or is contrary to public policy. (California Highway Commission v. Riley (1923) 192 Cal. 97, 112; Cook v. Noble (1919) 181 Cal. 720, 721; County of San Luis Obispo v. Superior Court (2001) 90 Cal.App.4th 288, 292.) We apply a deferential standard of review determining whether any factual findings are supported by substantial evidence; however, when, as here, the trial court's decision does not turn on disputed facts, the decision is subject to independent review. (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1032; Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)

B. The Initiative and Referendum Power

The California Constitution, article II, section 11 guarantees the local electorate's right to initiative and referendum. (DeVita v. County of Napa (1995) 9 Cal.4th 763, 775; Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 776.) The initiative power allows the electorate to propose laws; the referendum power is used to reject enacted laws. (Cal. Const. art. II, §§ 8-9; Rossi v. Brown (1995) 9 Cal.4th 688, 695-696.) Article II, section 11 of the California Constitution states, "Initiative and referendum powers may be exercised by the electors of each city and county under procedures that the Legislature shall provide." The courts must "`"jealously guard"'" this right. (DeVita v. County of Napa, supra, 9 Cal.4th at p. 776; accord Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at pp. 776-777.) To that end, it is judicial policy to liberally construe the initiative or referendum power whenever it is challenged. (DeVita v. County of Napa, supra, 9 Cal.4th at p. 776;Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at p. 776.)

The electorate's initiative and referendum authority is generally coextensive with a local legislative body's legislative power. (DeVita v. County of Napa, supra, 9 Cal.4th at p. 775; Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22, 26-27.) But administrative or executive powers generally are not subject to initiative and referendum. (DeVita v. County of Napa, supra, 9 Cal.4th at p. 776; Yost v. Thomas (1984) 36 Cal.3d 561, 569-570.) Moreover, a city council's legislative power is subject to initiative and referendum unless there is a clear showing the Legislature intended otherwise. (DeVita v. County of Napa, supra, 9 Cal.4th at pp. 775-776; Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at p. 777.) The Legislature can preempt initiative power with respect to local legislation in areas of statewide concern. (DeVita v. County of Napa, supra, 9 Cal.4th at p. 776; Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at p. 779.) Our Supreme Court has held: "The 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. (See [Voters for Responsible Retirement v. Board of Supervisors], supra, 8 Cal.4th at p. 779; [Committee of Seven Thousand v. Superior Court (1988)] 45 Cal.3d [491,] 511-512.)" (DeVita v. County of Napa, supra, 9 Cal.4th at p. 776.) Local employee compensation and conditions of employment, however, are generally matters of local rather than statewide concern. (Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at pp. 779-780; Kugler v. Yocum (1968) 69 Cal.2d 371, 374).

Government Code section 36506 specifically grants a city council the power and duty to fix city employee compensation. (Mitchell v. Walker (1956) 140 Cal.App.2d 239, 242, disapproved in other respects by Kugler v. Yocum, supra, 69 Cal.2d at p. 379, fn. 6.) Government Code section 36506 states, "By resolution or ordinance, the city council shall fix the compensation of all appointive officers and employees." Fixing employee compensation is a legislative act. (Bagley v. City of Manhattan Beach, supra, 18 Cal.3d at p. 25; Kugler v. Yocum, supra, 69 Cal.2d at p. 374.) As such, and absent a clear showing of Legislative intent to the contrary, city employee compensation is subject to initiative. (Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at p. 777; Collins v. City & Co. of S.F. (1952) 112 Cal.App.2d 719, 730.) We agree a city council cannot delegate the statutory power and duty to fix employee compensation to an arbitrator or another political subdivision. (Bagley v. City of Manhattan Beach, supra, 18 Cal.3d at pp. 24-27; Mitchell v. Walker, supra, 140 Cal.App.2d at pp. 241-245.) But plaintiffs argue an initiative that sets a minimum salary by reference to that paid by other cities properly legislates a policy of parity without improper delegation of authority. (Kugler v. Yocum, supra, 69 Cal.2d at pp. 373, 377; see Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630, 653.) This is so because as long as the legislative body makes the fundamental policy decision, its implementation by reference to a sufficient standard beyond its control is not an improper delegation of its power. (Kugler v. Yocum, supra, 69 Cal.2d at p. 377; see Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1045.)

But we need not resolve this issue because the proposed initiative does much more than simply enact a parity policy with respect to compensation. The proposed initiative requires: the city to grant certain benefits; prevents the city from allowing its budgeted positions to fall below the 2004-2005 level; prohibits the city from contracting out for general police services without prior voter approval; and allows the city to modify compensation and benefits, but only with the agreement of the Baldwin Park Police Officers...