Daly v. San Bernardino Cnty. Bd. of Supervisors

• Decision Date: 09 August 2021
• Docket Number: S260209
• Citation: 11 Cal.5th 1030,492 P.3d 921,282 Cal.Rptr.3d 282
• Court: California Supreme Court
• Parties: Michael Gomez DALY et al., Plaintiffs and Respondents, v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS et al., Defendants and Appellants; Dawn Rowe, Real Party in Interest and Appellant.

11 Cal.5th 1030

492 P.3d 921

282 Cal.Rptr.3d 282

Michael Gomez DALY et al., Plaintiffs and Respondents,

v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS et al., Defendants and Appellants;Dawn Rowe, Real Party in Interest and Appellant.

S260209

Supreme Court of California.

August 9, 2021

Meyers, Nave, Riback, Silver & Wilson, Deborah J. Fox, Los Angeles, T. Steven Burke, Jr., Matthew B. Nazareth, Los Angeles; Michelle D. Blakemore, County Counsel, and Penny Alexander-Kelley, Chief Assistant County Counsel, for Defendants and Appellants and for Real Party in Interest and Appellant.

McDermott Will & Emery, William P. Donovan, Jr., and Jason D. Strabo, Los Angeles, for Real Party in Interest and Appellant.

Jarvis, Fay & Gibson, Alexandra Barnhill and Gabriel McWhirter for League of California Cities as Amicus Curiae on behalf of Defendants and Appellants and for Real Party in Interest and Appellant.

James R. Williams, County Counsel (Santa Clara), Karun Tilak and Stephanie L. Safdi, Deputy County Counsel, for California State Association of Counties as Amicus Curiae on behalf of Defendants and Appellants and for Real Party in Interest and Appellant.

Altshuler Berzon, Stacey Leyton, San Francisco, Hunter B. Thomson, San Francisco; Rothner, Segall & Greenstone, Glenn Rothner, Pasadena, and Juhyung Harold Lee for Plaintiffs and Respondents.

David Snyder, Glen Smith ; Davis Wright Tremaine and Thomas R. Burke for First Amendment Coalition as Amicus Curiae on behalf of Plaintiffs and Respondents.

Opinion of the Court by Kruger, J.

To prevent injuries "from the premature enforcement of a determination which may later be found to have been wrong," the law has developed a set of rules and procedures for staying enforcement of certain court orders while they are reviewed on appeal. ( Scripps-Howard Radio v. Comm'n (1942) 316 U.S. 4, 9, 62 S.Ct. 875, 86 L.Ed. 1229.) In California, a long-established set of rules governs stays of injunctive orders — that is, orders to do something or to refrain from doing something. What rule applies depends on which kind of order it is. An injunction that requires no action and merely preserves the status quo (a so-called prohibitory injunction) ordinarily takes effect immediately, while an injunction requiring the defendant to take affirmative action (a so-called mandatory injunction) is automatically stayed during the pendency of the appeal.

In this case we consider how these rules apply to an order requiring a local legislative body, the San Bernardino County Board of Supervisors, to remove and replace one of its members. The order was based on a ruling that the board had violated statutory open-meeting requirements in making an appointment to a vacant board seat; as a remedy, the superior court required the board to rescind the appointment and to seat a replacement board member to be named by the Governor, according to the terms of the county charter. The board filed a petition for a writ of supersedeas to stay the effect of the superior court's order, which the Court of Appeal denied. We now reverse. The superior court's order to remove and replace the board member was a mandatory injunction — a command that the board take affirmative action to remedy the violation found by the trial court. As such, under long-established precedent, the order should be stayed until the appellate court has determined whether the trial court was correct.

I.

The San Bernardino County Board of Supervisors consists of five members elected from districts within the county. The county charter provides that within 30 days of a vacancy on the board, the remaining members of the board are to appoint a replacement by majority vote. If the board does not fill the vacancy within 30 days, the appointment is to be made by the Governor. (San Bernardino County Charter, art. 1, §§ 1, 7, as amended through Nov. 6, 2012.)

The supervisorial seat for San Bernardino County's Third District became vacant on December 3, 2018, when the incumbent left to join the California Assembly. The board's remaining supervisors began the process of appointing a replacement. The board received 48 applications from candidates meeting the eligibility requirements. Rather than interviewing all 48 applicants, the supervisors instead decided they each would submit nominees to the board's clerk by e-mail; only those candidates who had received at least two nominations would be interviewed. Through this e-mail nomination process, the board selected 13 candidates to be interviewed at a public meeting. At that meeting, the board then winnowed the field to five finalists, including real party in interest Dawn Rowe. The finalists were to be interviewed again at a special meeting on December 13, at which time the board expected to make the appointment.

Before that special meeting took place, the board received a letter from a resident who claimed the e-mail nomination process had violated the Ralph M. Brown Act (Brown Act), Government Code section 54950 et seq., which generally requires local legislative bodies to hold open meetings. The board then deferred further action on the appointment to its regular meeting set for December 18, 2018. Before the December 18 meeting, plaintiff Michael Gomez Daly sent the board a letter on behalf of the civic organization he directed, plaintiff Inland Empire United, also asserting that the board's nomination process had violated Brown Act provisions against "seriatim" meetings (that is, a series of closed communications or deliberations between members that collectively add up to the work of a legislative quorum) and secret ballots. Daly demanded the board adopt a new selection process in which all qualified applicants would have the opportunity for an interview.

At the December 18 meeting, the board took action in response to the claims that the e-mail nomination process violated the Brown Act. It voted to rescind its prior actions in the selection of a new Third District supervisor, including the creation of the list of 13 nominees to be interviewed, and to adopt a new process under which each supervisor would publicly submit up to three names and the board would publicly interview each candidate who received at least one vote. Using that process, the board, at the same meeting, selected six candidates to be interviewed, including Rowe. After the interviews, the board selected Rowe, who was then sworn in.

Plaintiffs Daly and Inland Empire United promptly filed a petition for a writ of mandate, naming as respondents the board and the four members who had participated in Rowe's appointment (collectively, the Board), with Rowe as the real party in interest. Plaintiffs sought a judicial determination that the initial nomination process violated two provisions of the Brown Act: Government Code section 54952.2, subdivision (b)(1), barring the use of seriatim communications in lieu of a meeting, and Government Code section 54953, subdivisions (a) and (c), requiring local legislative bodies to meet and vote openly. They also sought a determination that the violations had not been cured or corrected by the Board's actions at the meeting on December 18, 2018, and that Rowe's appointment was therefore "null and void under [Government Code] section 54960.1." As a remedy, they asked the superior court for an order requiring the Board to rescind the appointment and for a declaration that, no lawful and timely appointment having been made by the Board, the appointment of the Third District supervisor "shall be made by the Governor."

The superior court granted the mandate petition. In its statement of decision, the court concluded the Board's initial e-mail nomination process violated the Brown Act's "prohibition against seriatim meetings and secret ballots." The court further found the Board's attempted corrective actions at the December 18 meeting were "pro forma at best and did not constitute a cure."¹ The superior court accordingly determined Rowe's appointment was null and void under Government Code section 54960.1 and had to be rescinded, with a new appointment to be made by the Governor.²

In its subsequent judgment issuing a peremptory writ of mandate, the trial court ordered the Board to: "1. Rescind the appointment of Rowe as Third District Supervisor; [¶] 2. Refrain from allowing Rowe to participate as Third District Supervisor in any Board meetings or actions; [¶] 3. Refrain from registering or otherwise giving effect to any further votes cast by Rowe; [¶] 4. Refrain from making any appointment to the position of Third District Supervisor of the San Bernardino Board of Supervisors; and [¶] 5. Immediately seat any person duly appointed to the position of Third District Supervisor by the Governor."

The Board and Rowe appealed. After obtaining a temporary stay of the judgment from the superior court, the Board and Rowe petitioned the Court of Appeal for a writ of supersedeas and requested an immediate stay. The Court of Appeal issued a temporary stay pending briefing on the supersedeas petition, but then denied the stay for the pendency of the appeal. The Court of Appeal opined that the trial court's order was not automatically stayed as a mandatory injunction because "upon a finding that [the Board's] appointment of real party Dawn Rowe was null and void as arising out of a violation of the Brown Act [citation], the seemingly mandatory acts required in the superior court's injunction and writ of mandate are merely incidental to that finding and the injunction and writ of mandate are prohibitory in nature. [Citation.] The same finding of a null and void appointment means there was no change in status quo by the superior court's order." The court also denied a discretionary writ of supersedeas, reasoning that the Board and Rowe had neither shown they would be irreparably injured by the injunction nor "facially demonstrated the merits of the issues they present."

The Board and Rowe filed a joint petition for review asking whether the...