Lacy v. City of San Francisco

• Docket Number: A165899
• Decision Date: 08 August 2023
• Parties: JAMES V. LACY et al., Plaintiffs and Respondents, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.
• Court: California Court of Appeals

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JAMES V. LACY et al., Plaintiffs and Respondents,
v.
CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.

A165899

California Court of Appeals, First District, Fifth Division

August 8, 2023

Order Filed Date 8/28/23

(City & County of San Francisco Super. Ct. No. CPF-22-517714) Hon. Richard B. Ulmer, Jr. Judge:

David Chiu, City Attorney, Wayne Snodgrass, and James M. Emery, Deputy City Attorneys for Defendants and Appellants

Keker, Van Nest &Peters, R. Adam Lauridsen, Connie P. Sung, and Stephany Martinez Tiffer for Ron Hayduk, Hiroshi Motomura, and Jennifer M. Chacon as Amicus Curiae on behalf of Defendants and Appellants

Orrick Herrington &Sutcliffe, Mark S. Davies, Sheila Baynes, Kufere Laing, and John Palmer for Oakland and San Diego Unified School Districts as Amicus Curiae on behalf of Defendants and Appellants

ACLU Foundation of Northern California, Angelica Salceda; and ACLU Foundation of Southern California, Julia A. Gomez for Caregiver Organization as Amicus Curiae on behalf of Defendants and Appellants

Law Office of Chad D. Morgan, Chad D. Morgan for Plaintiffs and Respondents

Public Interest Legal Foundation, J. Christian Adams; and Lex Rex Institute, Alexander Haberbush for J. Kenneth Blackwell as Amicus Curiae on behalf of Plaintiffs and Respondents

Immigration Reform Law Institute, Lorraine G. Woodwark as Amicus Curiae on behalf of Plaintiffs and Respondents

ORDER MODIFYING OPINION; AND ORDER DENYING PETITION FOR REHEARING

The opinion filed August 8, 2023 is modified as follows:

(1) In the second paragraph, that starts with" 'Generally courts will only consider issues properly raised by the parties on appeal. [Citations.] However, the Supreme Court has recognized two exceptions to this rule,'" on page 29, change the (Sacramento County Employees' Retirement System v. Superior Court (2011) 195 Cal.App.4th 440, 473.) to be (Sacramento County Employees' Retirement System v. Superior Court (2011) 195 Cal.App.4th 440, 473 (Sacramento County).).

(2) Insert the following footnote at the end of the same paragraph, after ". . . we will consider the new argument." on page 29:

In a petition for rehearing, Plaintiffs argue Government Code section 68081 requires this court to order supplemental briefing on the vote dilution issue before deciding it. The parties had an opportunity to address the issue in briefs responding to the amicus briefs. In that

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brief, Plaintiffs provided a short substantive argument on the vote dilution issue and suggested this court "consider" supplemental briefing or a remand to the trial court. That Plaintiffs did not elect to discuss the issue in greater depth does not mean they are entitled to additional briefing. "[Government Code] [s]ection 68081 does not require that a party actually have briefed an issue; it requires only that the party had the opportunity to do so." (People v. Alice (2007) 41 Cal.4th 668, 677.) Plaintiffs' rehearing petition also contends Sacramento County, supra, 195 Cal.App.4th 440 does not support this court's consideration of the vote dilution argument, and that this court should not consider the argument because the parties did not have the opportunity to develop a factual record below. In their response to the amicus briefs, however, Plaintiffs argued this court should consider the issue, and cited Sacramento County. Moreover, in their rehearing petition, Plaintiffs fail to explain why further factual development is necessary, much less provide examples of evidence-or even general types of evidence-they would seek to present relevant to the vote dilution issue.

This footnote will become footnote number 29, renumbering all subsequent footnotes accordingly.

This order does not effect a change in the judgment.

Plaintiffs' August 23, 2023 petition for rehearing is denied.

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SIMONS, Acting P.J.

In 2016, San Francisco voters amended their city charter to authorize voting in local school board elections by noncitizen parents and guardians of school-age children. In 2022, after multiple school board elections in which noncitizens voted, the underlying lawsuit was brought alleging this charter amendment violated the California Constitution.

We reject the challenge for two reasons. First, neither the plain language of the Constitution nor its history prohibits legislation expanding the electorate to noncitizens. Second, the relevant constitutional provisions authorizing home rule permit charter cities to implement such an expansion in local school board elections. This authority is consistent with the principles underlying home rule and permits the voters of each charter city to determine whether it is good policy for their city or not.

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BACKGROUND

San Francisco (City)^[1] is a charter city and county. In 2016, City voters-all United States citizens^[2]-approved Proposition N, amending their charter to allow resident noncitizens who are adult parents or guardians of City children under 19 years old to vote in local school board elections.^[3]

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Proposition N included a sunset provision but authorized the City's board of supervisors (Board of Supervisors) to continue noncitizen voting in school board elections by ordinance. (S.F. Charter, § 13.111(a)(2).) The ballot pamphlet arguments in favor of Proposition N noted that an estimated one-third of San Francisco public school students have an immigrant parent, Proposition N would increase parental involvement in schools, and increased parental involvement leads to improved educational achievement. (S.F. Voter Information Pamp. (Nov. 8, 2016), proponent's argument in favor of Prop. N, p. 142.)

In 2018, the Board of Supervisors enacted an ordinance implementing Proposition N, including provisions requiring the City's Department of Elections to develop a noncitizen voter registration form for school board elections. (S.F. Ord. No. 128-18, adding art. X, §§ 1001-1005 to S.F. Mun. Code.) Between 2018 and Proposition N's sunset date, the City held three school board elections in which noncitizens voted pursuant to Proposition N. In 2021, in anticipation of Proposition N's sunset date, the Board of Supervisors enacted an ordinance making Proposition N permanent for all future school board elections. (S.F. Ord. No. 206-21, adding art. X, §§ 10001000.1 to S.F. Mun. Code.) Following the 2021 ordinance, noncitizens voted in a school board recall election in February 2022.^[4]

In March 2022, various plaintiffs (Plaintiffs)^[5] filed the underlying complaint and petition for writ of mandate, arguing Proposition N and its

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enacting ordinances violate the California Constitution and the Elections Code. Following briefing and a hearing, the trial court granted Plaintiffs' petition and issued a judgment finding the effective ordinance void and unenforceable.^[6]

DISCUSSION

I. California Constitution

Article II, section 2, subdivision (a) of the California Constitution^[7]states, "A United States citizen 18 years of age and resident in this State may vote." We hereafter refer to this provision as the Citizen Voter Provision. The City argues the provision sets only a floor for voter qualifications, and does not prohibit expanding the electorate to noncitizens.^[8] Plaintiffs argue the Constitution also establishes a ceiling, precluding such an expansion.

"' "The principles of constitutional interpretation are similar to those governing statutory construction. In interpreting a constitution's provisions, our paramount task is to ascertain the intent of those who enacted it. [Citation.] To determine that intent, we 'look first to the language of the constitutional text, giving the words their ordinary meaning.' [Citation.] If the language is clear, there is no need for construction. [Citation.] If the language is ambiguous, however, we consider extrinsic evidence of the

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enacting body's intent." '" (Greene v. Marin County Flood Control &Water Conservation Dist. (2010) 49 Cal.4th 277, 289-290 (Greene).)

The City argues the Citizen Voter Provision's identification of persons who "may vote" does not, by its terms, preclude the expansion of the franchise to noncitizens. The City notes the provision could, but does not, state, "only" a United States citizen . . . may vote. Plaintiffs point to a separate provision directing the Legislature to disqualify certain people from voting: "The Legislature shall prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or serving a state or federal prison term for the conviction of a felony." (Art. II, § 4.) Plaintiffs argue the two provisions read together set forth the full parameters of who may and may not vote, precluding the Legislature from expanding the franchise.

In determining whether the Constitution restricts the power to expand the electorate, the relationship between the Constitution and the Legislature is critical." 'Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. [Citations.] Two important consequences flow from this fact. First, the entire law-making authority of the state, except the people's right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution. [Citations.] In other words, "we do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited." [Citation.] [¶] Secondly, all intendments favor the exercise of the Legislature's plenary authority: "If there is any doubt as to the Legislature's power to act in any given case, the doubt should be resolved in favor of the

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Legislature's action. Such restrictions and limitations [imposed by the...