People ex rel. Kerr v. County of Orange, G031750.

• Decision Date: 03 March 2003
• Docket Number: No. G031750.,G031750.
• Citation: 106 Cal.App.4th 914,131 Cal.Rptr.2d 274
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE ex rel. Joe KERR et al., Plaintiffs and Respondents, v. COUNTY OF ORANGE, Defendant and Appellant.

131 Cal.Rptr.2d 274

106 Cal.App.4th 914

The PEOPLE ex rel. Joe KERR et al., Plaintiffs and Respondents, v. COUNTY OF ORANGE, Defendant and Appellant.

No. G031750.

Court of Appeal, Fourth District, Division 3.

March 3, 2003.

As Modified on Denial of Rehearing April, 2, 2003.

Review Denied June 11, 2003.

Benjamin P. deMayo, County Counsel, Marianne Van Riper, Jeffrey M. Richard and Nicole A. Sims, Deputies County Counsel, for Defendant and Appellant County of Orange.

Law Offices of Philip B. Greer and Phillip B. Greer for Intervenor and Appellant William Campbell and for Foothill Homeowners Association as Amicus Curiae on behalf of Defendant and Appellant.

Ruth Sorensen, Alturas, for California State Association of Counties as Amicus Curiae on behalf of Defendant and Appellant.

JoAnne Speers, Sacramento, for League of California Cities as Amicus Curiae on behalf of Defendant and Appellant.

Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Steven L. Mayer and Richard C. Jacobs, San Francisco, for El Toro Reuse Planning Authority as Amicus Curiae on behalf of Defendant and Appellant.

Paul, Hastings, Janofsky & Walker, Stephen L. Berry, Costa Mesa, and Kenneth P. White, Los Angeles, for Orange County Business Council as Amicus Curiae on behalf of Defendant and Appellant.

Morrison & Foerster, Dean J. Zipser, Vikki L. Vander Woude, Adina L. Witzling, Irvine, Michael Feuer, Benjamin J. Fox, Los Angeles;

Bill Lockyer, Attorney General, Andrea Lynn Hoch, Chief Assistant Attorney General, Louis R. Mauro, Senior Assistant Attorney General, and David M. Verhey, Deputy Attorney General, for Plaintiffs and Respondents.

OPINION

SILLS, P.J.

I. Introduction

The majority of California's 58 counties do not have charters. In those counties, the structure of county government is laid out in various statutes enacted by the Legislature and found in the state Government Code. Thirteen counties, not counting Orange County, do have charters, in which the structure of county government is provided for in the charter itself, subject to certain restrictions in the California Constitution and state statutes.

Orange County is the 14th county with its own charter. However, its charter, adopted with the passage of Measure V in the March 2002 primary election, is atypical. It is very short — so short, in fact, that we can quote all of it in a single footnote.¹ Its brevity is the result of a wholesale incorporation of the general laws of the state of California except as otherwise expressly provided for by the charter, and the charter has only one provision deviating from the general laws of California — the manner of filling a vacancy in the county board of supervisors. Without this charter, the Governor would fill any vacancy. (Gov.Code, § 25060 ["Whenever a vacancy occurs in any board of supervisors, the Governor shall fill the vacancy. The appointee shall hold office until the election and qualification of his successor."].) Under the new charter enacted by Measure V, the voters in the supervisorial district elect the replacement, either (depending on the time) at a special election or at an upcoming general election.

A group of citizens have now challenged Measure V, seeking to invalidate it on the theory that it is unconstitutional, or, if constitutional, on the theory that it was misleadingly described in the ballot materials. Their arguments fall into four major categories:

(1) Measure V does not literally comply with the provision of the state Constitution, article XI, section 4, that prescribes what a county charter must contain.²

(2) Measure V is substantively inconsistent with the idea of county home rule because it cedes various aspects of local government to the Legislature through the incorporation of the state's general law into the charter.

(3) The voters were given a misleading or defective description of the charter by the county's official lawyer, the county counsel, in the impartial analysis sent to the voters.

(4) The voters should have been given a fiscal impact statement as well as a description of the charter in their ballot materials. (See Elec.Code, § 9160.)

As explained in more detail below, none of these arguments is persuasive. The charter does literally comply with Article XI, section 4, because by incorporating the general law of California it provides for each of the requirements in that constitutional provision. And, there is nothing inherently inconsistent with home rule in the idea of county voters choosing to have most of the rules of county government made by the Legislature: If that, paradoxically, is the home choice, so be it. It isn't for the courts to take that right away from the county voters. In fact, as we show below, this charter actually facilitates home rule because it gives the voters the right to change rules made by the Legislature in the future, something they would not have without a charter. Indeed, merely by choosing a charter form, Orange County gained significant flexibility in dealing with future contingencies.

Further, California election law does not allow a litigant to contest an election on the theory that a 500-word impartial analysis was deficient. The reality of this case is that plaintiffs have tried to do exactly that — undo an election by critiquing the impartial analysis provided with the ballot materials. While case law does allow the possibility that an impartial analysis can be so misleading and inaccurate that constitutional due process requires invalidation of the election, any alleged deficiencies in the county counsel's impartial analysis in this case come nowhere near to implicating any constitutional concerns.

Finally, the inclusion of a fiscal impact statement is clearly a discretionary matter under the terms of the relevant statute, and the board here was well within its discretion not to include one.

II. The Passage of the Measure, the Litigation, and the Subsequent Election

The idea of a charter to allow the county voters to decide on any vacancies was first proposed to the Orange County Board of Supervisors in late May 2001, and by July 2001, the board voted to put Measure V on the March 2002 ballot. The measure passed by a 52.8 percent to 47.2 percent margin in the March 2002 election, becoming effective on filing with the Secretary of State in April.

In September 2002, plaintiffs in this case filed, in their own names, a petition for a writ of mandate in the superior court seeking an injunction commanding the county not to enforce Measure V on the ground it was unconstitutional. The county filed a demurrer in October. In November plaintiffs responded with a complaint in "quo warranto" — hence the "People ex rel." in the caption.³

Also, after one of the five members of the board of supervisors was elected to the state Assembly in November, he resigned, and the remaining members of the board set January 28, 2003 as the date of a special election to fill the ensuing vacancy. The setting of the election prompted plaintiffs to seek an early hearing on a request for a preliminary injunction to stop the election. They got their early hearing date, which was December 19, 2002.

The preliminary injunction was denied, but the trial judge did decide to move the case along so that a full trial could be completed by January 28, 2003. He set January 21, 2003, the Tuesday a week before the scheduled election, as the day to begin trial. During the month of January the lawyers on both sides filed, on an almost daily basis, a great deal of paperwork with the court (briefs on various issues, motions in limine, requests for judicial notice, objections, that sort of thing). Trial consumed four days (January 21-24), ending on Friday, January 24.

On Saturday, January 25 — during the last weekend before the election — the trial court issued an 18-page written "minute" order concluding that Measure V was unconstitutional on the grounds of substantive (as distinct from literal) noncompliance with the state Constitution, and failure of the county counsel's impartial analysis to explain to the voters its full ramifications. Given the impending election, the trial court's solution was to issue an injunction which allowed the election to go forward, but not have the votes counted.

Within hours on that Saturday this court stayed that order. Because the trial court's minute order contemplated an immediate judgment in conformance with the minute order, we have deemed the minute order to incorporate such a judgment, a procedural device which allows appellate courts to expedite a case. (See Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal. App.4th 535, 539, 4 Cal.Rptr.2d 361 [construing unappealable minute order to incorporate an appealable judgment so as to avoid delay].) Plaintiffs then filed a formal request with this court asking that the election be put off pending appellate review of the proceedings. That request was denied, but plaintiffs were given an expedited briefing schedule so the appellate hearing could take place within the month. The election went forward, and Bill Campbell, who is also an intervenor in these proceedings, won, and has since taken office.

The election was not meaningless in any event. As plaintiffs themselves acknowledged in requesting that this court stay the election, even if it were later determined that the winner had no right to hold office in the aftermath of his winning the election, the winner's actions in office could not be legally challenged or undone. (In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 42, 37 Cal.Rptr. 74, 389 P.2d 538.)

While plaintiffs asserted (in their request that this court stay the election) that the litigation would dampen the turnout, that was only a matter of speculation. Indeed, the ensuing publicity might have increased it. We will never know.

Moreover, to the degree that plaintiffs, concern might have been correct, plaintiffs have only themselves to blame. They might have brought...