Metropolitan News-Enterprise


Tuesday, October 12, 2021


Page 1


Court of Appeal:

County Counsel Need Not Process Facially Invalid Initiative


By a MetNews Staff Writer


Div. Two of the Fourth District Court of Appeal held Friday that a county counsel is not obliged to come up with a title for a proposed ballot measure and a summary of it where the initiative does not pass constitutional muster.

San Bernardino County Counsel Michelle D. Blakemore declined to provide a title and summary for an initiative proposed by Eli G. Whitley, and Whitley, asserting that she had a ministerial duty under Elections Code §9105 to perform that task, filed a petition for a writ of mandate. San Bernardino Superior Court Judge David S. Cohn denied it.

Presiding Justice Manuel A. Ramirez authored the unpublished opinion affirming the judgment.

Whitley’s measure would require the county to publish a monthly report reciting, on a day-by-day basis, what every employee, including officers and elected officials, did the previous month, and how long it took. (Four previous versions were also rejected.)

“[W]hile there is a right of initiative, there is no constitutional right to place an invalid initiative on the ballot,” Ramirez wrote.

State Constitutional Provision

The proposed measure is invalid, he said, because it could force the county to employ persons to do the monitoring which, he said, would violate Art. XI, §4(f) of the state Constitution. That provision says:

“(f) The fixing and regulation by governing bodies, by ordinance, of the appointment and number of assistants, deputies, clerks, attaches, and other persons to be employed, and for the prescribing and regulating by such bodies of the powers, duties, qualifications, and compensation of such persons, the times at which, and terms for which they shall be appointed, and the manner of their appointment and removal.”

Ramirez declared “that issuing a ballot title and summary is not a purely ministerial duty in cases where the proposed initiative suffers from facial invalidity, such as by encroaching or infringing on the authority of a governing body in violation of article XI, section 4, subdivision (f) of the California Constitution.”

Where an invalid measure is presented to election officials, he said, the county can seek declaratory relief or, in the alternative, the official whose performance is requested could simply do what Blakemore did: assert the invalidity and decline to act.

Independent Contractors

The presiding justice noted that San Bernardino’s county charter, like that of Los Angeles County, authorizes engaging the services of independent contractors to perform governmental tasks. But using independent contractors, he said, would not cure the infirmity. “An initiative measure compelling the County to hire employees or engage independent contractors for specific duties not provided by the county violates the ‘home rule’ doctrine,” Ramirez wrote.

He said an application of that doctrine is embodied in Art. XI, §1(b) of the state Constitution which says that a county’s “governing body shall provide for the number, compensation, tenure, and appointment of employees.”

Ramirez noted that at oral argument, Whitley’s lawyer acknowledged that requiring precise recitations as to activities of the county’s deputy public defenders would intrude upon the attorney-client privilege.

He commented:

“Ironically, the proposed initiative would require the County to expend great sums of money in order to determine whether the county employees are wasting county resources. Further, it would add to the public financial obligations, which ironically were the very concern sought to be addressed by the initiative.”

The case is Whitley v. Blakemore, E075102.


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