California Supreme Court:
Appeal From Mandatory Injunction Requiring San Bernardino Board of Supervisors to Rescind Appointment to Vacancy on the Board Put Matter on Hold, Kruger Writes; C.A. Should Have Issued Writ of Supersedeas
By a MetNews Staff Writer
A woman whose appointment to a vacancy on the San Bernardino Board of Supervisors was declared unlawful by a Superior Court judge because preliminary decision-making was made via emailed communications rather than in open session, in violation of the Ralph M. Brown Act, was entitled to retain the seat during the appeals process, the California Supreme Court held yesterday.
A preliminary injunction issued by the San Bernardino Superior Court requiring the board to rescind the appointment and call upon the governor to fill the vacancy was mandatory in nature, Justice Leondra Kruger said in an opinion for a unanimous court, and a stay of the order was automatic.
“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,” she recited.
The Board of Supervisors and its appointee, Dawn Rowe, “were entitled to a writ of supersedeas effectuating such a stay,” Kruger wrote. Her opinion reverses a Jan. 8, 2020 order by Div. Two of the Fourth District Court of Appeal denying summarily such a writ and lifting a stay it previously issued.
The Supreme Court on Jan. 23, 2020, issued an order declaring that proceedings in the San Bernardino Superior Court “are hereby stayed pending further order of this court.” On Feb. 19 of that year, it granted review, limiting the issue to whether the plaintiffs, Michael Daly and Inland Empire United, were properly challenging Rowe’s appointment via an action in mandate or whether an action in quo warranto (requiring permission of the state attorney general) is “the exclusive procedure for such a challenge.”
Kruger said in yesterday’s opinion:
“We now conclude the order here should have been automatically stayed as a mandatory injunction; we accordingly do not address whether a discretionary writ of supersedeas should have issued based on the likelihood of the Board’s success on the merits of the quo warranto exclusivity issue.”
Mootness Not Discussed
The jurist does not discuss in her opinion whether the controversy is moot. Rowe was appointed to fill out the term of James C. Ramos who, having been elected to state Assembly on Nov. 3, 2018, assumed his new post on Dec. 3 of that year.
His term on the Board of Supervisors, to which Rowe succeeded, ended on Dec. 7, 2020. Rowe was elected to the board through attaining 55.68 percent of the vote in the March 3, 2020 primary.
Daly, executive director of Inland Empowerment, a coalition of community groups, and co-plaintiff Inland Empire United, which backs candidates for local offices, assumed that the outcome of the 2020 election would render moot the appointment of Daly. In arguing against the Board of Supervisors’s request in the Supreme Court for a stay, they said:
“Appellants have made clear their objective is to run out the clock on the superior court’s judgment until Rowe runs for election in the upcoming March 3. 2020 election as an ‘incumbent’ supervisor—with all the advantages that the designation and powers of incumbency provide—and until the current supervisorial term expires on December 7, 2020—after which point, the relief ordered by the superior court will become moot.”
Embarking on the task of selecting a replacement for Ramos, the remaining supervisors—who, under the country charter, had only 30 days within which to make a choice, or forfeit the selection to the governor—decided against interviewing all 48 applicants for the post. Instead, they determined that each supervisor would email nominations to the clerk, and only persons nominated by at least two supervisors would be interviewed.
This winnowed the list to 13 prospective appointees. Those persons were interviewed at a public session; the list was narrowed to five, including Rowe; a special meeting was scheduled for the purpose of making the final selection.
That plan was scotched when a protest was received that the email procedure ran afoul of the Brown Act. At their Dec. 18, 2018 meeting, the supervisors started over, with each publicly nominating up to three persons; six came in contention; all were interviewed; Rowe was chosen and was sworn in.
Granting a petition for a writ of mandate, San Bernardino Superior Court Janet M. Frangie declared that the email process breached the Brown Act’s “prohibition against seriatim meetings and secret ballots” and that the board’s action on Dec. 18, 2018 were “pro forma at best and did not constitute a cure.”
Kruger said in a footnote:
“The merits of the superior court’s decision on these points is not before us, and we express no opinion regarding them.”
Kruger observed that “California statutes provide both trial and appellate courts general discretion (subject to certain statutory limits) to stay orders, including injunctions…, but do not appear to authorize the general exercise of equitable discretion to countermand or modify the stay of an injunction imposed automatically,” commenting:
“Given the essentially equitable nature of the stay pending appeal, it would seem to make sense for both trial and appellate courts to have the same authority to order, when justice demands it, that a mandatory injunction take effect notwithstanding the filing of an appeal from the injunctive order. This issue is beyond the scope of the questions presented and briefed in this case for our review, so we do not answer it here. But the Legislature may always, if it chooses, reexamine California’s statutory law governing stays pending appeal and decide whether the law would be better served by an approach that permits courts to take account of a wider array of equitable considerations than does present law.”
The case is Daly v. San Bernardino County Board of Supervisors, 2021 S.O.S. 4393.
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