Untitled California Attorney General Opinion ( 1997 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-502
of :
: November 12, 1997
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE JAMES B. LINDHOLM, COUNTY COUNSEL, SAN LUIS OBISPO
COUNTY, has requested an opinion on the following question:
May the electorate of a general law county enact through the initiative process an ordinance
that would require a vote of the people for (1) any closure, sale, or lease of a county hospital, (2) any action
transferring the management of a county hospital from the board of supervisors to another entity, or (3) any
reduction or elimination of medical services at a county hospital?
CONCLUSION
The electorate of a general law county may not through the initiative process enact an
ordinance that would require a vote of the people for (1) any closure, sale, or lease of a county hospital, (2)
any action transferring the management of a county hospital from the board of supervisors to another entity,
or (3) any reduction or elimination of medical services at a county hospital.
ANALYSIS
In this request for our opinion we are asked if the electorate of a general law county may,
through the initiative process, enact an ordinance that would require prior voter approval with respect to
changes in the management or control of a county hospital by the board of supervisors. We conclude that the
electorate may not enact such an ordinance through the initiative process.
In article II, sections 8 and 9 of the Constitution, the people have reserved to themselves the
powers of initiative and referendum with respect to state laws, that is, the power to propose (initiative) or
reject (referendum) such laws. In section 11 of the same article, the people have similarly reserved to
themselves initiative and referendum powers in "each city and county under procedures that the Legislature
shall provide." We are here concerned with the county initiative process, for which the Legislature has
provided facilitating procedures. (Elec. Code, §§ 9100-9126). Pursuant to the governing statutory scheme, the
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provided facilitating procedures. (Elec. Code, §§ 9100 9126). Pursuant to the governing statutory scheme, the
electorate of a county may propose an ordinance through a petition signed by the requisite number of voters,
requiring the board of supervisors to either adopt the ordinance or submit the matter of its adoption to the
electorate.
The right of the local electorate to initiate ordinances is generally coextensive with the
power of the local governing body to enact legislation. (De Vita v. County of Napa (1995) 9 Cal. 4th 763,
775; Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal. 4th 765, 777; Simpson v. Hite
(1950) 36 Cal. 2d 125, 129.) "``Only ordinances which involve an exercise of legislative power may be
enacted by initiative.' [Citations.]" (Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal. 3d 511, 516,
fn. 6.) "[T]he purpose of an initiative is to enact laws the local governing body could enact." (Memorial
Hospitals Assn. v. Randol (1995) 38 Cal. App. 4th 1300, 1310.) In this respect, we note that the Constitution
prohibits boards of supervisors of general law counties from adopting ordinances that conflict with state law.
Section 7 of article XI of the Constitution provides:
"A county or city may make and enforce within its limits all local, police, sanitary,
and other ordinances and regulations not in conflict with general laws." Footnote No. 1
Thus, neither a board of supervisors of a general law county nor the electorate through the initiative process
may adopt ordinances that conflict with state law.
It is also now well settled that the initiative power may not be exercised by the local
electorate where the Legislature has designated the local governing body as its agent to administer policies of
statewide concern. (Committee of Seven Thousand v. Superior Court (1988) 45 Cal. 3d 491, 500-507; Yost v.
Thomas (1984) 36 Cal. 3d 561, 570; Associated Home Builders etc., Inc. v. City of Livermore (1976) 18
Cal. 3d 582, 596, fn. 14; Simpson v. Hite, supra, 36 Cal.2d at 129-135; Da Vita v. County of Napa, supra, 9
Cal.4th at 780-781; W.W. Dean & Associates v. City of South San Francisco (1987) 190 Cal. App. 3d 1368,
1374-1379; Ferrini v. City of San Luis Obispo (1983) 150 Cal. App. 3d 239, 248-249; Merriman v. Board of
Supervisors (1983) 138 Cal. App. 3d 889, 891-892; Redevelopment Agency v. City of Berkeley (1978) 80
Cal. App. 3d 158, 167-171; Friends of Mount Diablo v. County of Contra Costa (1977) 72 Cal. App. 3d 1006,
1010-1012; Walker v. City of Salinas (1976) 56 Cal. App. 3d 711, 715-717; Fletcher v. Porter (1962) 203
Cal. App. 2d 313, 318-321; 66 Ops.Cal.Atty.Gen. 258, 259-261 (1983).) As recently explained by the
Supreme Court, the Legislature may "delegate the exercise of [legislative] authority exclusively to the
governing body, thereby precluding initiative and referendum." (Da Vita v. County of Napa, supra, 9 Cal.4th
at 776.)
Here, we are concerned with a county hospital. As to the property of a county, the court in
County of Marin v. Superior Court (1960) 53 Cal. 2d 633, 638-639, stated:
". . .[A]ll property under the care and control of a county is merely held in trust by the
county for the people of the entire state. The county is merely a political subdivision of state
government, exercising only the powers of the state, granted by the state, created for the purpose
of advancing ``the policy of the state at large, for purposes of political organization and civil
administration, in matters of finance, of education, of travel and transport, and expressly for the
general administration of justice.' [Citations.] The county holds all its property, therefore, . . as
agent of the state. [Citations.]"
In County of Los Angeles v. Graves (1930) 210 Cal. 21, 25, the court observed:
". . . If there be legal title in the county, it is held in trust for the whole public. In the
absence of constitutional restrictions, the Legislature has full control of the property so held by
the counties as agencies of the state. [Citation.] . . . ."
Th L i l t h t d h i t t t h i th i iti
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The Legislature has enacted a comprehensive statutory scheme governing the acquisition,
sale, lease, or other disposition of county real property. (Gov. Code, §§ 25520-25588.) Government Code
section 25521 provides:
"The board of supervisors of any county may sell or lease for a term not exceeding 99
years, without a vote of the electors of the county first being taken, any real property belonging
to the county."
Not only has the Legislature vested the authority to dispose of or manage county property specifically in the
"board of supervisors," the establishment and administration of county medical facilities (Health & Saf.
Code, §§ 1440-1475) rests solely in the board of supervisors (Health & Saf. Code, § 1441). Health and Safety
Code section 1442.5 expressly provides in part:
"Prior to closing a county facility, eliminating or reducing the level of medical
services provided, or prior to the leasing, selling, or transfer of management, the board shall
provide public notice, including notice posted at the entrance to all county health care facilities,
of public hearings to be held by the board prior to their decision to proceed. The notice shall be
posted not less than 14 days prior to the public hearings. The notice shall contain a list of the
proposed reductions or changes, by facility and service. The notice shall include the amount and
type of each proposed change, the expected savings, and the number of persons affected.
"Notwithstanding the board's closing of a county facility, the limitation of or
reduction in the level of services provided, or the leasing, selling, or transfer of management of a
county facility subsequent to January 1, 1975, the county shall provide for the fulfillment of its
duty to provide care to all indigent people, either directly through county facilities or indirectly
through alternative recipients."
Accordingly, the Legislature has designated the board of supervisors as its agent to
administer public hospital services in each county. (See Health & Saf. Code, §§ 1442.5, 1445; Welf. & Inst.
Code, § 14000.2; City and County of San Francisco v. Superior Court (1976) 57 Cal. App. 3d 44, 46-47; 38
Ops.Cal.Atty.Gen. 176 (1961).) It has expressly authorized boards of supervisors to sell or lease county
property without voter approval. (Gov. Code, § 25521.) However, before selling, leasing, transferring the
management of, or reducing the level of medical services in a county hospital, the public must be notified and
public hearings held. (Health & Saf. Code, § 1442.5.) Footnote No. 2
Since a local initiative measure may not conflict with state law, a vote of the people may not
be required for the sale or lease of a county hospital. (Gov. Code, § 25521.) Because the Legislature has
designated the board of supervisors as its agent to manage county hospital medical services, a local initiative
may not grant voters "approval authority" over management decisions. (See De Vita v. County of Napa,
supra, 9 Cal.4th at 775-777; Committee of Seven Thousand v. Superior Court, supra, 45 Cal.3d at 500-507;
Board of Education v. Superior Court, supra, 93 Cal.App.3d at 584-585.) As recently affirmed by the Court
of Appeal in Memorial Hospitals Assn. v. Randol, supra, 38 Cal.App.4th at 1313:
". . . Where the Legislature has enacted a statewide policy and has assigned to a
particular local body the duty to implement that policy, the Legislature thereby places
implementation of the statewide policy beyond the reach of initiative and referendum.
[Citations.]"
In 7 Ops.Cal.Atty.Gen. 85 (1946), we concluded that a local initiative may not require a
board of supervisors to contract with a hospital district to provide medical care for indigent persons, stating:
"In the present situation the care of the indigent sick is a matter which requires the
constant administrative attention of the board of supervisors and their use of discretionary power
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to decide the mode and manner of care. A contract with a public agency such as the proposed
hospital district would be the proper subject of a resolution by the board after consideration of
the details of the service to be rendered and the funds available. This would be an administrative
function of the board and a decision to contract after an offer to perform by the hospital district
....
"It is our opinion that . . . an ordinance which would itself effectuate or require the
supervisors to effectuate a contract with a hospital district constitutes an interference with the
executive and administrative powers of the board of supervisors and is not within the initiative
power." (Id., at p. 87.)
We reaffirm our 1946 opinion, which we find to be fully supported by case law developed over the past 50
years.
In answer to the question presented, therefore, we conclude that the electorate of a general
law county may not enact through the initiative process an ordinance that would require a vote of the people
for (1) any closure, sale, or lease of a county hospital, (2) and action transferring the management of a county
hospital from the board of supervisors to another entity, or (3) any reduction or elimination of medical
services at a county hospital.
*****
Footnote No. 1
The promotion of the public health and welfare of the citizens of a county falls within the powers conferred by section 7 of
article XI of the Constitution. (Goodall v. Brite (1936) 11 Cal. App. 2d 540.) Return to text
Footnote No. 2
As one court has observed, if voters are dissatisfied with decisions made by their elective officers, "they are not without a
remedy; the recall procedure is expressly made applicable. [Citations.]" (Board of Education v. Superior Court (1979) 93
Cal. App. 3d 578, 585.)
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