Metropolitan News-Enterprise


Friday, May 26, 2023


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C.A. Upholds Constitutionality of Term Limit That Voters Rescinded Two Years Later

Dissenting, Justice Menetrez Says He ‘Would Not Issue An Advisory Opinion On Moot Issues’


By a MetNews Staff Writer


The constitutionality of a 2020 San Bernardino County ballot measure amending the charter to limit supervisors to a single one-year term is constitutional, Div. Two of the Fourth District Court of Appeal declared yesterday, over the protest of a dissenter who noted that the measure was abrogated by a ballot measure enacted by voters in 2022.

“Nearly every issue in this appeal is moot, so nearly everything in the majority opinion is advisory,” Justice Frank J. Menetrez pointed out in his dissent. “Because I would not issue an advisory opinion on moot issues, I respectfully dissent.”

The single-term rule was contained in Measure K, approved by voters on Nov. 3, 2020, and which San Bernardino Superior Court Judge Donald R. Alvarez struck down on Aug. 31, 2021. While that decision was on appeal, voters on Nov. 8, 2022 eradicated Measure K by enacting Measure D, restoring the prospect of three four-year terms for supervisors.

The validity of Measure D was upheld by San Bernardino Superior Court Judge Winston S. Keh. That decision is on appeal.

Theoretical Possibility

In light of yesterday’s decision upholding the constitutionality of a one-term limit, Measure K could theoretically spring back into existence. That would happen if the Fifth District were to overturn Measure D.

If that occurred, San Bernardino County would be the only county in California with such a term limit. On Oct. 2021, Gov. Gavin Newsom signed into law AB 428 which bars enactment of any new term limits of less than two terms.

Recognizing the possibility of Measure D being struck down, Menetrez said in his dissent:

“I would vacate submission and stay the appeal pending final resolution of the Measure D litigation.”

Ramirez’s Opinion

Writing for the majority was Presiding Justice Manuel A. Ramirez, who was joined by Justice Douglas P. Miller.

“With all respect to our dissenting colleague,” Ramirez scoffed, “Measure D is irrelevant.”

He reasoned:

“The fact that Measure D has not yet been struck down, and thus is presumptively valid, does not make this case moot….If we dismiss this case as moot, and if Measure D is then struck down, any relief we grant as to Measure K would still be effective; however, we would have no way of bringing this case back to life again.”

Ramirez added:

“The only even arguable question is whether we should stay this appeal pending the outcome of the Measure D litigation. There is not even any pending request for a stay; before oral argument, the Board requested a stay, but we denied it. We see no reason why the appeal filed later should have precedence over the one filed earlier….It is time to decide this case.”

Issue of Compensation

The presiding justice noted that “even if Measure D is eventually upheld, this case still will not be moot; there would still be a live issue regarding the supervisors’ compensation from 2020 through 2022.”

Measure K limited the county lawmakers’ pay to $5,000 per month. Ramirez’s opinion holds that salaries may be set by initiative, and that the provision does not contravene the minimum-wage law.

However, he said, the salary reduction may not be applied to the three supervisors who were newly elected in 2020. Ramirez pointed to Government Code §1235, which provides:

“The salary of any elected public office shall not be reduced during an election year after any candidate for that particular office has filed the requisite forms declaring his or her candidacy for that particular office.”

Pointing out that Measure K went into effect on Dec. 18, 2020, he set forth:

“That was ‘during an election year.’ While the record does not show exactly when the new supervisors filed their candidacy forms, it had to be sometime before they were elected, on November 3, 2020. It follows that the compensation limit cannot apply to the new supervisors.”

Alvarez found the salary limit to be ballot but struck it down, finding that it was not severable from the term limit. Ramirez remarked:

“Because both the one-term limit and the compensation limit are valid, we need not decide whether Measure K is severable.”

Term-Limit Invalidation

In his ruling striking down Measure K, Alvarez found that the term-limit provision “imposes a burden that does not reasonably justify the infringement on voters’ and incumbents’ 1st and 14th amendment rights.”

He said:

“[T]he desire to ensure a candidate seeks to serve the public interest cannot justify then precluding a candidate or electing an incumbent he believes is serving the interest of the voters at least for one or two additional terms of office. And a reasonable remedy exists if the incumbent seeking re-election is not performing competently: the electorate vote for the other candidate.”

Ramirez countered that voters, in approving Measure K, had valid objectives. He wrote:

“The ballot arguments in favor of Measure K said, among other things: ‘Voting YES for term limits and reduced salaries will finally attract representatives interested in public service and committed to following the will of the people.’ ‘Obligated to financial backers for reelection, the Board of Supervisors has chosen to ignore voters and their rights.’ ‘A single four-year term will help shut out...outside interests and focus our leaders on doing what’s best for us all.’ ‘Measure K will ensure our elected officials are inspired by service to San Bernardino County residents, not an oversized paycheck or raising money to win their next election.’

“It was important to the electorate, then, to ensure that supervisors could not be either distracted or compromised by the prospect of a future term. A three-term limit could never accomplish this goal. A one-term limit was the only alternative.”

The case is San Bernardino County Board of Supervisors v. Monell (Renner), E077772.


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