DocketNumber： E077772
Filed Date： 5/25/2023
Status： Precedential
Modified Date： 5/25/2023
Filed 5/25/23 See Dissenting Opinion CERTIFIED FOR PARTIAL PUBLICATION ∗ IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO SAN BERNARDINO COUNTY BOARD OF SUPERVISORS, E077772 Plaintiff and Appellant; (Super.Ct.No. CIVSB2025319) v. OPINION LYNNA MONELL, as Clerk, etc., Defendant and Respondent; NADIA RENNER, Intervener and Appellant. APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Reversed and remanded with directions. The Red Brennan Group and Aaron D. Burden; Briggs Law Corporation and Cory J. Briggs for Intervener and Appellant. The Sutton Law Firm, Bradley W. Hertz, and Nicholas L. Sanders for Plaintiff and Appellant. ∗ Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exceptions of part II, VI, and VIII. 1 Jolena E. Grider, Deputy County Counsel, for Defendant and Respondent. Jonathan M. Coupal, Timothy A. Bittle, and Laura E. Dougherty for Amicus Curiae Howard Jarvis Taxpayers Foundation. Jennifer B. Henning for Amicus Curiae California State Association of Counties. The facts are simple. The legal issues are not. On November 3, 2020, the voters of San Bernardino County passed Measure K. It amended the county charter so as to (1) limit a supervisor to a single four-year term and (2) limit a supervisor’s compensation to $5,000 a month. At the same time, the voters also elected three new supervisors. The trial court ruled that the one-term limit is unconstitutional. It also ruled that the compensation limit is constitutional, but, because Measure K is not severable, it, too, must be struck down. Finally, it ruled that Measure K did not apply to the new supervisors (although it acknowledged that the issue was moot, in light of its other rulings). Nadia Renner — the proponent of Measure K — appeals. She contends that: (1) The one-term limit is constitutional. (2) The compensation limit is severable. (3) Measure K applies to the new supervisors. (4) The trial court erred by enjoining the certification, authentication, recordation, and filing of Measure K. 2 The San Bernardino County Board of Supervisors (Board) cross-appeals. It contends that: (5) Supervisors’ compensation cannot be set by initiative, because state law delegates supervisors’ compensation exclusively to boards. (6) The compensation limit violates minimum wage laws; alternatively, if it effectively forces supervisors to work part-time, it impairs essential governmental functions. (7) The compensation limit improperly acts as a referendum on San Bernardino County Code section 13.0614 (section 13.0614), which provides for supervisors’ compensation. We perceive a preliminary issue of appealability. However, we will conclude that the trial court’s ruling is appealable. We will hold that the one-term limit is constitutional. We will further hold that supervisors’ compensation can be set by initiative. The Board has not shown that the compensation limit violates minimum wage laws. The Board also has not shown that the compensation limit conflicts with section 13.0614; even assuming it does, the voters can amend or abrogate an ordinance not only by referendum, but also by initiative. Because both the one-term limit and the compensation limit are valid, we need not decide whether 3 Measure K is severable. As to whether Measure K applies to the new supervisors, we reach a split decision: The one-term limit applies, but the compensation limit does not. 1 Finally, assuming the trial court erred by enjoining the certification, authentication, recordation, and filing of Measure K, the error is forfeited, harmless, and/or moot. I FACTAL AND PROCEDURAL BACKGROUND A. Statement of Facts. The following facts are taken from Renner’s statement of facts and statement of the case, which the Board concedes are accurate; from the declaration, and exhibits introduced below; and from matters of which the trial court took judicial notice. Renner is the proponent of Measure K, a San Bernardino County initiative. Measure K amends the county charter. It has four key provisions. First, it provides that a supervisor can serve only one four-year term. An unexpired term counts toward the four-year limit, but only if it has two or more years left to run when Measure K goes into effect. Previously, supervisors were limited to three consecutive four-year terms. Second, it limits the compensation of a supervisor, including all benefits, to $5,000 a month. Previously, supervisors’ compensation was set at the average of the compensation of supervisors in Riverside, Orange, and San Diego 1 In an unpublished portion of this opinion, we will reject the Board’s additional contention that Measure K violates the single-subject rule. 4 Counties. Third, it provides: “To the extent permitted by law, the provisions of this Charter Amendment shall be effective on voter approval of the initiative as provided by California law.” Fourth, it includes a severability provision. On November 3, 2020, Measure K passed, with 66.84 percent of the votes. Another initiative on the ballot at the same time, Measure J, completely revised and restated the county charter. It, too, passed, but barely, with only 50.72 percent of the votes. Measure J would have limited supervisors to three terms (consecutive or not) and would have given them a salary set at 80 percent of a superior court judge’s salary and the same benefits as department heads. However, because Measure K got more votes, it supersedes Measure J to the extent that they conflict. (Elec. Code, §§ 9102, 9123; see Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990)51 Cal.3d 744
, 765-768.) At the same time, new supervisors Joe Baca, Jr., Col. Paul Cook, and Dawn Rowe were elected to the Board. On December 7, 2020, they were sworn in. On December 8, 2020, the Board (including the newly elected supervisors) certified the results of the election. B. Statement of the Case. Meanwhile, on December 2, 2020, the Board filed a combined complaint and writ petition, seeking a declaration that Measure K was invalid plus an injunction and a writ of mandate preventing its enforcement. The only named defendant was Lynna Monell, in 5 her official capacity as the Clerk of the Board. However, the trial court gave Renner leave to intervene. On January 8, 2021, the trial court granted the Board’s application for a temporary restraining order (TRO). 2 The case was tried to the court as a writ petition, based on trial briefs and oral argument, with no live testimony. The trial court granted the petition. It ruled that the one-term term limit was unconstitutional. It further ruled that the compensation limit was constitutional; however, it was not severable, and therefore Measure K as a whole was invalid. Finally, it ruled that Measure K was prospective only, and therefore it did not apply to the new supervisors. However, it acknowledged that this issue was moot in light of its other rulings. C. Subsequent Statutory Changes. On October 4, 2021 — after the trial court ruled — Assembly Bill No. 428 (2021- 2022 Reg. Sess.) (AB 428) was enacted (Stats. 2021, ch. 462, p. 6507), and on January 1, 2022, it went into effect. AB 428 was enacted specifically in response to Measure K. (Assem. Com. on Elections, Analysis of Assem. Bill No. 428 (2021-2022 Reg. Sess.) as amended Mar. 18, 2021, p. 3.) It amended Government Code section 25000, subdivision (b) so that it now provides, as relevant here (additions italicized): 2 A hearing on a preliminary injunction was set, continued, and then vacated. Thus, while the record is not entirely clear on this point, it appears that the TRO remained in effect until the trial court ruled on the petition. 6 “(1) Notwithstanding any other provision of law, the board of supervisors of any general law or charter county may adopt or the residents of the county may propose, by initiative, a proposal to limit to no fewer than two terms or repeal a limit on the number of terms a member of the board of supervisors may serve on the board of supervisors. Any proposal to limit the number of terms a member of the board of supervisors may serve on the board of supervisors shall apply prospectively only . . . . “(2) The changes made to this subdivision by the act that added this paragraph shall not affect any term limits that were legally in effect prior to January 1, 2022 . . . .” It also amended Government Code section 25300, subdivision (b) so that it now provides (additions italicized): “The board of supervisors shall prescribe the compensation of all county officers, including the board of supervisors, and shall provide for the number, compensation, tenure, appointment and conditions of employment of county employees. Except as otherwise required by Section 1 or 4 of Article XI of the California Constitution, such action may be taken by resolution of the board of supervisors as well as by ordinance.” II APPEALABILITY The trial court issued a “ruling” granting the mandate petition. It did not enter a formal judgment. It also did not expressly rule on the Board’s second (injunction) and third (declaratory relief) causes of action. Moreover, as far as the record shows, it did not actually issue either a writ or a permanent injunction. 7 There is a preliminary question of whether the ruling is appealable. We conclude, however, that it was. “[A]n order granting or denying a petition for an extraordinary writ [can] constitute[] a final judgment for purposes of an appeal, even if the order is not accompanied by a separate formal judgment. [Citations.]” (Public Defenders’ Organization v. County of Riverside (2003)106 Cal.App.4th 1403
, 1409; cf. Natomas Unified School Dist. v. Sacramento County Bd. of Education (2022)86 Cal.App.5th 1013
, 1027.) “[A] ruling on a petition for writ of mandate is not appealable if other causes of action remain pending between the parties. [Citation.]” (Canandaigua Wine Co., Inc. v. County of Madera (2009)177 Cal.App.4th 298
, 302.) But “an order constitutes a final judgment despite other causes of action remaining if the order effectively disposes of the entire case. For example, an order is appealable if it resolves an allegation that is essential to all of the causes of action. [Citation.]” (Id. at p. 303.) Here, the trial court’s ruling effectively resolved the cause of action for an injunction, by declaring that Measure K is unconstitutional and “cannot be implemented . . . .” It also effectively resolved the cause of action for declaratory relief, again by declaring Measure K unconstitutional. The ruling “contemplated no further action, such as the preparation of another order or judgment [citation], and disposed of all issues between all parties.” (Laraway v. Pasadena Unified School Dist. (2002)98 Cal.App.4th
8 579, 583.) Moreover, it is clear from the record that the parties themselves did not contemplate any further judicial action. It follows that the ruling is appealable. III THE EFFECT OF MEASURE D Measure D was enacted in 2022, while this appeal was pending. It would supersede Measure K — if Measure D is valid. A trial court upheld Measure D, but its validity is currently before this court in The Red Brennan Group v. Jimenez et al., E080868. So far, nothing has happened in that case, other than the filing of the Civil Case Information Statement. In the ordinary course of business, it is likely to be a year or so before we decide it — to say nothing of how much time any subsequent Supreme Court review will consume. With all respect to our dissenting colleague, Measure D is irrelevant. The fact that Measure D has not yet been struck down, and thus is presumptively valid, does not make this case moot. “A case becomes moot when events ‘“render[] it impossible for [a] court, if it should decide the case in favor of plaintiff, to grant him any effect[ive] relief.”’ [Citation.]” (In re D.P. (2023)14 Cal.5th 266
, 276, italics added.) 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. And even if Measure D is eventually upheld, this case still 9 will not be moot; there would still be a live issue regarding the supervisors’ compensation from 2020 through 2022. 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. Renner has paid her filing fee; the parties have fully briefed the appeal; prior to oral argument, we drafted and issued a tentative opinion; and we heard oral argument. Courts have no jurisdiction to decide moot cases, On the flip side, however, “[a] court is tasked with the duty ‘“to decide actual controversies by a judgment which can be carried into effect . . . .”’ [Citation.]” (In re D.P., supra, 14 Cal.5th at p. 276, italics added.) It is time to decide this case. IV THE ONE-TERM LIMIT The trial court ruled that the one-term limit violates “voters’ and incumbents’ 1st and 14th amendment rights.” Renner contends that it erred. A. The Anderson-Burdick Framework. “It is beyond cavil that ‘voting is of the most fundamental significance under our constitutional structure.’ [Citation.] It does not follow, however, that the right to vote in 10 any manner and the right to associate for political purposes through the ballot are absolute. [Citation.]” (Burdick v. Takushi (1992)504 U.S. 428
, 433 (Burdick).) “Election laws will invariably impose some burden upon individual voters. Each provision of a code, ‘whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects — at least to some degree — the individual’s right to vote and his right to associate with others for political ends.’ [Citation.]” (Burdick, supra, 504 U.S. at p. 433.) “A court considering a challenge to a state election law must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ [Citations.] “Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, . . . when those rights are subjected to ‘severe’ restrictions, the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’ [Citation.] But when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth 11 Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions. [Citations.]” (Burdick, supra, 504 U.S. at p. 434.) 3 “This latter, lesser scrutiny is not ‘pure rational basis review.’ [Citation.] Rather, ‘the court must actually “weigh” the burdens imposed on the plaintiff against “the precise interests put forward by the State,” and the court must take “into consideration the extent to which those interests make it necessary to burden the plaintiff’s rights.”’ [Citation.] Review under this balancing test is ‘quite deferential’ . . . . [Citation.]” (SAM Party of New York v. Kosinski (2d Cir. 2021)987 F.3d 267
, 274.) “‘Courts will uphold as “not severe” restrictions that are generally applicable, even-handed, politically neutral, and which protect the reliability and integrity of the election process. [Citation.] . . .’ [Citation.] ‘Courts will strike down state election laws as severe speech restrictions only when they significantly impair access to the ballot, stifle core political speech, or dictate electoral outcomes.’ [Citation.]” (Rawls v. Zamora (2003)107 Cal.App.4th 1110
, 1116.) 3 Burdick drew on the Supreme Court’s earlier decision in Anderson v. Celebrezze (1983)460 U.S. 780
. Accordingly, the approach it outlined is sometimes called the Anderson-Burdick test or the Anderson-Burdick framework. (See, e.g., Edelstein v. City and County of San Francisco (2002)29 Cal.4th 164
, 168 (Edelstein).) Renner and the Board both agree that the Anderson-Burdick test is controlling here. Recently, one federal appellate court held that the Anderson-Burdick test is “inapposite” to the analysis of term limits. (Kowall v. Benson (6th Cir. 2021)18 F.4th 542
, 547, cert. den. (2022) ___ U.S. ___ [143 S. Ct. 88
].) As we will discuss, however, controlling California Supreme Court authority requires us to apply the Anderson- Burdick test. 12 B. Whether the One-Term Limit Is “Severe.” The trial court ruled that the one-term limit was “severe” because it “is not merely about limiting the term but limiting the term to one time . . . .” 1. Relevant case law. In Legislature v. Eu (1991)54 Cal.3d 492
(Eu), our Supreme Court upheld Proposition 140, which imposed lifetime term limits of two four-year terms per state senator and three two-year terms per state assemblymember. (See Eu at pp. 502-506, 518.) The court began by saying: “[T]he initiative power must be liberally construed to promote the democratic process. [Citation.] Indeed, it is our solemn duty to jealously guard the precious initiative power, and to resolve any reasonable doubts in favor of its exercise. [Citation.] As with statutes adopted by the Legislature, all presumptions favor the validity of initiative measures and mere doubts as to validity are insufficient; such measures must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citation.]” (Eu, supra, 54 Cal.3d at p. 501.) It then held that strict scrutiny was not required because the term limits did not have a “serious impact on First Amendment freedoms of speech and association,” as they “d[id] not affect speech interests and . . . impact[ed] all political parties on an equal basis. [Citation.]” (Eu, supra, 54 Cal.3d at p. 515.) Rather, the term limits were entitled to “wide latitude,” because they “[we]re applied in an even-handed manner without discriminating against particular citizens or classes of citizens.” (Id. at p. 516.) 13 In Bates v. Jones (9th Cir. 1997)131 F.3d 843
(en banc) (Bates), cert. den. (1998)523 U.S. 1021
, the Ninth Circuit Court of Appeals similarly upheld Proposition 140. It held that its impact on the plaintiffs’ claimed “right to vote for the candidate of one’s choice and . . . right of an incumbent to again run for his or her office” was “not severe.” (Id. at p. 847.) It explained that “term limits on state officeholders is [sic] a neutral candidacy qualification, such as age or residence, which the State certainly has the right to impose. [Citation.] With regard to incumbents, they may enjoy the incumbency of a single office for a number of years, and . . . they are not precluded from running for some other state office. [¶] Most important, the lifetime term limits do not constitute a discriminatory restriction. [They] make[] no distinction on the basis of the content of protected expression, party affiliation, or inherently arbitrary factors such as race, religion, or gender. Nor do[] [they] ‘limit [] political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status.’ [Citation.]” (Ibid.) Significantly, the Board has not cited any case striking down any term limits on First and Fourteenth Amendment grounds. 2. Application here. Under Eu and Bates, at least as a general rule, term limits are not so “severe” as to trigger strict scrutiny. The trial court distinguished those cases, however, on the ground that a one-term lifetime limit is “severe.” In light of the way “severe” has been interpreted and applied, this was error. 14 In Eu, the court concluded that the term limits there were not severe because they were nondiscriminatory — they “[we]re applied in an even-handed manner without discriminating against particular citizens or classes of citizens.” (Eu, supra, 54 Cal.3d at p. 516.) They were not based on the content of protected speech. (Id. at p. 515.) “They impact[ed] all political parties on an equal basis. [Citation.]” (Ibid.) A one-term limit is no different in these respects. In Bates, the court concluded that the same term limits were not severe because (1) they were “neutral,” (2) they allowed incumbency “for a number of years” and did not preclude an incumbent from running for a different office, and (3) they did not distinguish “on the basis of the content of protected expression, party affiliation, or inherently arbitrary factors such as race, religion, or gender.” (Bates, supra, 131 F.3d at p. 847.) Again, a one-term limit is no different. The only argument to the contrary is that it allows incumbency for a lesser “number of years” than the term limits in Eu and Bates. Those limits, however, while they were not one-term limits, allowed a state senator to serve for no more than eight years and a state assembly member to serve for no more than six years. The difference between the six or eight years there and the four years here is not sufficient to be constitutionally significant — particularly when the term limits here are similarly neutral and nondiscriminatory and do not preclude an incumbent from holding any other office. Four years is ample time for a supervisor to at least attempt to tick off all the boxes on his or her legislative to-do list. In this respect, the Board, with only five members, is very 15 different from the California Senate, with 40 members, or the California Assembly, with 80 members. In the latter bodies, seniority and a cursus honorum of committee memberships both play a role. By contrast, a newly elected supervisor can hit the ground running. 4 The Board does not point to anything that a supervisor could accomplish in six or eight years but not in four. C. Whether the Regulatory Interests Are Sufficient to Justify the One-Term Limit. The trial court also ruled that, even assuming Measure K’s one-term limit was not “severe,” “the stated reason [for it] is not sufficient to justify imposing the burden [of] precluding an incumbent from seeking re-election.” It explained, “A one-term limit is not providing a supervisor sufficient time in the governing body position.” “Additionally, . . . the 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.” 4 Amicus curiae Howard Jarvis Taxpayers Association takes a swipe at the trial court for “weighing the merits of an ideal learning curve for a county supervisor.” We find that we cannot help but consider this subject in deciding whether the term limits here allow a supervisor to serve “a significant period in office” within the meaning of Eu or, more generally, unduly injure the rights of voters and candidates. 16 1. Relevant case law. In Eu, the Supreme Court balanced the claimed injury to First and Fourteenth Amendment rights against the State’s claimed interests, as follows. First, it considered “the nature of the injury to the rights affected . . . .” (Eu, supra, 54 Cal.3d at p. 517; see id. at pp. 517-519.) It concluded that the term limits “do[] affect the rights of voters and candidates to a degree . . . .” (Id. at p. 519.) With respect to candidates, however, the impact was “mitigate[d]” by three factors: “First, the affected incumbent is not barred from seeking any other public office . . . . Second, the term limitations arise only after the incumbent already has had the opportunity to serve a significant period in office . . . .” (Id. at p. 518.) Third, the term limits in most instances did not count terms served before they went into effect. (Ibid.) Similarly, with respect to voters, it was unclear whether a right to vote for a particular candidate even existed. (Eu, supra, 54 Cal.3d at p. 519; see also id. at pp. 516, 518.) In any event, the court accepted the argument that the term limits there “d[id] not truly impair the franchise, for the voters retain the basic fundamental right to cast their ballots for the qualified candidate of their choice.” (Id. at p. 519; see also ibid [“mitigating aspects[] include[e] the voters’ continued right to vote for any qualified candidates”].) Second, it considered “the interests asserted by the state as justifications for that injury . . . .” (Eu,supra,
54 Cal.3d at p. 517; see id. at pp. 520-522.) It observed that “‘[c]onstitutional restrictions circumscribing the ability of incumbents to succeed 17 themselves appear in over twenty state constitutions, and exist in the Twenty-second Amendment to the Constitution of the United States with regard to the Presidency. The universal authority is that restriction upon the succession of incumbents serves a rational public policy and that, while restrictions may deny qualified men an opportunity to serve, as a general rule the over-all health of the body politic is enhanced by limitations on continuous tenure. [Citations and fn. omitted].’ [Citations.]” (Id. at p. 520.) “[T]he substantial reasons for limiting the right of incumbents to succeed themselves . . . include ‘[t]he power of incumbent officeholders to develop networks of patronage and attendant capacities to deliver favorably disposed voters to the polls,’ ‘fears of an entrenched political machine which could effectively foreclose access to the political process,’ and the belief that regularly disrupting those ‘machines’ ‘would stimulate criticism within political parties’ and ‘insure a meaningful, adversary, and competitive election.’ [Citation.] “In addition, . . . ‘ . . . a limitation upon succession of incumbents removes the temptation to prostitute the government to the perpetuation of a particular administration. [Citation.] . . . Meretricious policies which sacrifice the well-being of economic, social, racial, or geographic minorities are most likely where a political figure, political party, or political interest group can rely upon electorate inertia fostered by the hopelessness of encountering a seemingly invincible political machine.’ [Citation.]” (Eu, supra, 54 Cal.3d at p. 521.) 18 Third, it considered “the necessity for imposing the particular burden affecting the plaintiff’s rights, rather than some less drastic alternatives.” (Eu,supra,
54 Cal.3d at p. 517; see id. at pp. 522-524.) It noted that “incumbents do indeed appear to enjoy considerable advantages over other candidates. [Citations.]” (Id. at p. 523.) “It is true . . . that [the proponents] have not offered evidence to support all of the various premises on which [the term limits are] based. But . . . a state need not demonstrate empirically all of the various evils that its regulations seek to combat . . . .’ [Citation.]” (Id. at p. 524.) The opponents argued that alternative measures, such as “a limitation on consecutive terms, together with additional restrictions on campaign contributions to legislators, decreased fringe and pension benefits, and additional incentives for early retirement, would have been sufficient to promote and accomplish the state interests previously discussed.” (Eu, supra, 54 Cal.3d at pp. 522-523.) The court responded that “[r]ealistically, only a lifetime ban could protect against various kinds of continued exploitation of the ‘advantages of incumbency’ captured through past terms in office. The remainder of [the opponents’] suggested ‘alternatives’ essentially involve narrow changes in the system of providing contributions or compensation for legislators, changes that would afford ‘career politicians’ with independent resources little incentive to voluntarily terminate public service.” (Id. at p. 524.) “[W]e conclude,” the court said, “the interests of the state in incumbency reform outweigh any injury to incumbent office holders and those who would vote for them.” 19 (Eu, supra, 54 Cal.3d at p. 524.) Indeed, the court observed, “it is unlikely we would reach a different result applying strict scrutiny . . . . (Id. at p. 515.) By contrast, Bates upheld the state’s justification for the term limits with little discussion. It said, “[A] lack of term limits may create ‘unfair incumbent advantages.’ Long-term entrenched legislators may obtain excessive power which, in turn, may discourage other qualified candidates from running for office or may provide the incumbent with an unfair advantage in winning reelection.” (Bates, supra, 131 F.3d at p. 847.) “California voters apparently perceived lifetime term limits for elected state officials as a means to promote democracy by opening up the political process and restoring competitive elections. This was their choice to make. [Citation.]” (Ibid.) 2. Application here. We apply the three-part Anderson-Burdick framework as our Supreme Court did in Eu. It must be remembered that review under this framework is deferential — all the more so when the electoral restriction being analyzed was enacted by initiative. Moreover, when the restriction is “‘reasonable [and] nondiscriminatory,’ . . . ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions. [Citations.]” (Burdick, supra, 504 U.S. at p. 434.) 20 a. The nature of the injury to the rights affected. i. The voters’ rights. (a) The nature of the right. Federal courts have held that voters have no right to vote for a particular candidate. (Citizens for Legislative Choice v. Miller (6th Cir. 1998)144 F.3d 916
, 921; Stiles v. Blunt (8th Cir. 1990)912 F.2d 260
, 266 [voters do not have “an absolute right to support a specific candidate regardless of whether he or she has satisfied reasonable eligibility requirements”], cert. den. (1991)499 U.S. 919
.) Eu acknowledged this. (Eu,supra,
54 Cal.3d at pp. 516, 518.) However, it noted that, at least at the time, Canaan v. Abdelnour (1985)40 Cal.3d 703
, 714-716 (Canaan) was to the contrary. (Eu,supra,
54 Cal.3d at p. 516.) Canaan had held that “[a] ban on write-in voting affects . . . the right of . . . voters to cast ballots for the candidates of their choice.” (Canaan, supra, at p. 715.) Eu concluded that, while term limits “affected . . . the voters’ right to reelect the incumbent” (Eu,supra, at p. 517
; see also id. at p. 519), the existence and scope of this right were “unclear”; hence, “the legal impact of [term limits] on the voters remain[ed] uncertain.” (Id. at p. 519.) It treated this uncertainty as a “mitigating aspect.” (Ibid.) After Eu was decided, the Supreme Court overruled Canaan. (Edelstein,supra,
29 Cal.4th at p. 183.) While the extent to which Edelstein overruled particular portions of Canaan is open to debate (see ibid.), Edelstein did disavow a specific right to vote for 21 a particular candidate in favor of a more general right “to make free choices and to associate politically through the vote . . . .” (Id. at pp. 175, 177-178, 182-183.) (b) The impact on the right. Term limits do not affect these general rights. Voters still have the right to make free choices and to associate politically through the vote. As in Eu, the term limits here “do not truly impair the franchise, for the voters retain the basic fundamental right to cast their ballots for the qualified candidate of their choice.” (Eu, supra, 54 Cal.3d at p. 519.) ii. The candidates’ rights. (a) The nature of the right. In her reply brief, Renner argues that candidates do not have a fundamental right to run for public office. She forfeited this contention by failing to raise it below. (Delta Stewardship Council Cases (2020)48 Cal.App.5th 1014
, 1074.) She further forfeited it by failing to raise it in her opening brief. (Raceway Ford Cases (2016)2 Cal.5th 161
, 178.) In any event, we reject this contention on the merits. The California Supreme Court has held that “[t]he right to seek public office . . . [is] fundamental.” (Canaan, supra, 40 Cal.3d at p. 727.) “There has been some suggestion in the case law that the right to be a candidate for public office may not be fundamental in and of itself. [Citations.] However, this court has described the right to hold public office as ‘valuable, fundamental and one that is subject to First Amendment protection . . . .’ [Citations.]” (Id. at p. 714.) Admittedly, as mentioned, Canaan was 22 overruled in Edelstein, but not on this particular ground. (Edelstein, supra, 29 Cal.4th at p. 183.) Moreover, the earlier cases on which Caanan itself relied have never been overruled. (Johnson v. Hamilton (1975)15 Cal.3d 461
, 468 [“the right to hold public office [is] valuable, fundamental and . . . subject to First Amendment protection . . . .”]; Zeilenga v. Nelson (1971)4 Cal.3d 716
, 723 [“the right to run for public office is as fundamental a right as is the right to vote”].) More recently, in Eu, the Supreme Court said, “Two important rights are affected by [term limits], namely, the incumbent’s right to run for public office, and the voters’ right to reelect the incumbent to that office.” (Eu,supra,
54 Cal.3d at p. 517, italics added.) Thus, it analyzed the impact on candidates (id. at pp. 517-518), and it weighed that impact, along with the impact on voters, against the state’s interest in the term limits at issue. (Id. at pp. 519-520, 522-524.) Federal cases are not to the contrary. According to the United States Supreme Court, “The right of . . . an individual to a place on a ballot is entitled to protection . . . .” (Lubin v. Panish (1974)415 U.S. 709
, 716; see also Moore v. Martin (8th Cir. 2017)854 F.3d 1021
, 1025 [“Ballot access restrictions implicate . . . the rights of potential candidates for public office . . . .”], cert. den. ___ U.S. ___ [138 S.Ct. 321
]; Phillips v. City of Dallas (5th Cir. 2015)781 F.3d 772
, 778-779 [“This court has been unequivocal in its recognition of a First Amendment interest in candidacy.”]; Davies v. Grossmont Union High School Dist. (9th Cir. 1991)930 F.2d 1390
, 1397 [“the individual’s right to seek public office is inextricably intertwined with the public’s fundamental right to 23 vote”]; Branch v. FCC (D.C. Cir. 1987)824 F.2d 37
, 47 [the existence of a “right to seek political office . . . is undeniable . . . .”], cert. den. (1988)485 U.S. 959
.) Admittedly, the United States Supreme Court “has not . . . attached such fundamental status to candidacy as to invoke a rigorous standard of review.” (Bullock v. Carter (1972)405 U.S. 134
, 142-143; see also Clements v. Fashing (1982)457 U.S. 957
, 963 [“Far from recognizing candidacy as a ‘fundamental right,’ we have held that the existence of barriers to a candidate’s access to the ballot ‘does not of itself compel close scrutiny.’”] [plur. opn. of Rehnquist, J.] (Clements).) However, this simply means that strict scrutiny is not required. If it were, few provisions for “the selection and eligibility of candidates” (Burdick, supra, 504 U.S. at p. 433) would escape challenge. “[T]o say that the right to candidacy is not fundamental is not to say that a rational basis analysis applies.” (Brazil-Breashears v. Bilandic (7th Cir. 1995)53 F.3d 789
, 792, cert. den516 U.S. 869
.) Rather — just like the voter’s right to vote — the candidate’s right to run for office is subject to the Anderson-Burdick test. (See, e.g., Libertarian Party of Arkansas v. Thurston (8th Cir. 2020)962 F.3d 390
, 398.) 5 5 We respectfully disagree with Kern County Employees’ Retirement Assn. v. Bellino (2005)126 Cal.App.4th 781
(Kern County), which held that an asserted infringement of the right to run for office is subject to rational-basis review. (Id. at p. 794.) In our view, Kern County misread Justice Rehnquist’s plurality opinion in Clements,supra,
457 U.S. 957
. It said that strict scrutiny is not required (id. at p. 963), but it did not say that rational basis review applies. To the contrary, it said, “Decision in this area of constitutional adjudication is a matter of degree, and involves a consideration of the facts and circumstances behind the law, the interests the State seeks to protect by placing restrictions on candidacy, and the nature of the interests of those who may be burdened by the restrictions.” (Ibid.) Thus, Clements foreshadowed the intermediate [footnote continued on next page] 24 Eu concluded that the term limits “do[] affect the rights of . . . candidates to a degree . . . .” (Eu, supra, 54 Cal.3d at p. 519.) With respect to candidates, however, the impact was “mitigate[d]” by three factors: “First, the affected incumbent is not barred from seeking any other public office . . . . Second, the term limitations arise only after the incumbent already has had the opportunity to serve a significant period in office . . . .” (Eu, supra, 54 Cal.3d at p. 518.) Third, the term limits in most (though not all) instances did not count terms served before they went into effect. (Ibid.) (b) The impact on the right. With respect to candidates, a one-term limit is ipso facto more burdensome than the two- and three-term limits in Eu. Nevertheless, the reasons stated in Eu for concluding that the impact was “mitigate[d]” largely also apply here. First, a termed-out incumbent is free to run for any other county (or state or federal) office. Second, the term limits do allow an incumbent to serve “a significant period in office.” (Eu, supra, 54 Cal.3d at p. 518.) As already discussed, we cannot meaningfully distinguish a four-year maximum from the six-year maximum applicable to assemblymembers in Eu. 6 (See part III.B.2, ante.) scrutiny subsequently announced by Anderson and refined by Burdick (neither of which Kern County cited). 6 In conformity with Government Code section 25000, subdivision (a), which sets a supervisor’s term at four years, the drafters of Measure K did not attempt to prescribe a five, six, or seven-year term. 25 Third, Measure K does not count unexpired terms, if they have less than two years still to run. That is not so very different from the term limits in Eu, which did not count unexpired terms at all (except that it did count them against “some incumbent Senators”). (Eu, supra, 54 Cal.3d at p. 518.) The fact that in Eu, terms begun by some incumbent Senators did count demonstrates that Eu did not view this factor as dispositive. b. The interests asserted by the state as justifications for the injury. Eu acknowledged that the state has a legitimate interest in term limits: “‘The universal authority is that restriction upon the succession of incumbents serves a rational public policy and that, while restrictions may deny qualified men an opportunity to serve, as a general rule the over-all health of the body politic is enhanced by limitations on continuous tenure. [Citations and fn. omitted].’” (Eu, supra, 54 Cal.3d at p. 520.) It indicated that this interest was sufficiently compelling for the term limits there to survive even strict scrutiny. (Id. at p. 524.) Bates agreed that the state has an interest in term limits: “Long-term entrenched legislators may obtain excessive power which, in turn, may discourage other qualified candidates from running for office or may provide the incumbent with an unfair advantage in winning reelection.” (Bates, supra, 131 F.3d at p. 847.) The trial court reasoned that “the 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 26 office. And a reasonable remedy exists if the incumbent seeking re-election is not performing competently: the electorate vote for the other candidate.” These arguments, however, apply to a two- or three-term limit just as much as to a one-term limit; essentially, they are arguments against having any term limits at all. As we know from Eu, however, term limits imposed by initiative are presumptively valid. The trial court was not entitled to second-guess the voters’ position on these policy issues. The Board argues that “Renner raises a purported government interest by merely citing the language of Eu and provides no evidence that this interest is relevant to San Bernardino County.” Eu held, however, that such evidence is not required. (Eu,supra,
54 Cal.3d at p. 523.) “[W]e [do not] require elaborate, empirical verification of the weightiness of the State’s asserted justifications. [Citation.]” (Timmons v. Twin Cities Area New Party (1997)520 U.S. 351
, 364.) c. The necessity for imposing the burden. When the problem is personal empire-building by entrenched incumbents, the only solution is term limits. As Eu said, “Realistically, only a lifetime ban could protect against various kinds of continued exploitation of the ‘advantages of incumbency’ captured through past terms in office.” (Eu, supra, 54 Cal.3d at p. 524.) The Board argues that the preexisting three-term limit was adequate and “a far less drastic alternative” to a one-term limit. The voters, however, were presented with the choice between Measure J, which would have kept the three-term limit, and Measure K’s one-term limit; they overwhelmingly preferred Measure K. 27 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.” 7 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. D. Conclusion. In sum, in the words of Burdick, the one-term limit here is a “‘reasonable, nondiscriminatory restriction[],’ and therefore “‘the State’s important regulatory interests are . . . sufficient to justify’” it. (Burdick, supra, 504 U.S. at p. 434.) 7 As evidence of the purposes of Measure K, Renner cites the statement of reasons that appeared on petitions to qualify the initiative. (See Elec. Code, § 9202.) Such a statement, which was not made available to all voters, does not constitute legislative history. (Cf. Carter v. Commission on Qualifications of Judicial Appointments (1939)14 Cal.2d 179
, 185 [ballot pamphlet, “sent to the electors of the state,” is an indicator of intent].) 28 V THE COMPENSATION LIMIT The trial court also ruled that the compensation limit was valid and constitutional. In its cross-appeal, the Board contends that this was error, for three reasons. A. Exclusive Delegation. First, the Board contends that supervisors’ compensation cannot be set by initiative, because state law delegates the power to set supervisors’ compensation exclusively to a county’s governing body. The trial court rejected this contention; it found “no clear indication that the Legislature intended the governing body to exclusively hold the right to set their salary within the charter and exclude the use of the initiative power to amend the charter associated with the governing body’s compensation.” We agree. 1. Analysis under the California Constitution. California has two kinds of counties: charter counties and general law counties. (Cal. Const., art. XI, § 3, subd. (a); Roe v. County of Lake (N.D. Cal. 2000)107 F.Supp.2d 1146
, 1148.) San Bernardino is a charter county. (S.B. County Charter; Stats. 1913, ch. 33.) Article XI, section 3, subdivision (a) (section 3(a)) of the Constitution states, “County charters . . . shall supersede . . . all laws inconsistent therewith. The provisions of a charter are the law of the State and have the force and effect of legislative enactments.” (Cal. Const., art. XI, § 3, subd. (a).) Thus, section 3(a) grants a charter 29 county “‘home rule,’ i.e., the authority of the people to create and operate their own local government and define the powers of that government, within the limits set out by the Constitution. [Citation.]” (Dibb v. County of San Diego (1994)8 Cal.4th 1200
, 1206.) 8 Despite the seeming breadth of section 3(a), a county charter supersedes state law only when the county is legislating in its proper sphere. Hence, “charter provisions cannot control in matters of statewide concern where the state has occupied the field.” (Wilson v. Beville (1957)47 Cal.2d 852
, 859; accord, American Financial Services Assn. v. City of Oakland (2005)34 Cal.4th 1239
, 1251.) Article XI, section 1, subdivision (b) of the California Constitution (section 1(b)) provides, “[E]ach governing body [of a county] shall prescribe by ordinance the compensation of its members . . . .” However, section 1(b) expressly applies only “[e]xcept as provided in subdivision (b) of Section 4 of this article . . . .” (Ibid.) And Article XI, section 4, subdivision (b) says that a county charter must provide for “[t]he 8 Charter cities also have home rule. (Cal. Const., art. XI, § 5, subd. (a).) “But the ‘version of “home rule” afforded to a charter city is substantially more expansive’ than that granted to charter counties. [Citation.] While charter cities are granted broad authority over ‘municipal affairs,’ ‘[t]here is no corresponding grant of authority and autonomy over the “county affairs” of charter counties. [Citations.]’ [Citation.]” (People v. Minor (2002)96 Cal.App.4th 29
, 40.) Subject to that caveat, case law dealing with charter cities also applies to charter counties. (See, e.g., Marquez v. City of Long Beach (2019)32 Cal.App.5th 552
, 562, fn. 5 [“The cases addressing the home rule doctrine have applied the same analysis to the authority of charter counties . . . and charter cities . . . to set the compensation for their employees.”].) 30 compensation . . . of members of the governing body.” (Cal. Const., art. XI, § 4, subd. (b) (section 4(b)).) In other words, in a general law county, the “governing body” must set its members’ compensation. By contrast, in a charter county, the county charter may provide the method of setting the compensation of members of the governing body; the governing body has no power to set the compensation of its members, unless the county charter so provides. (See Brown v. Francisco (1954)123 Cal.App.2d 413
, 417 [county charter may fix supervisors’ compensation or may allow supervisors to do so].) Last but not least, the voters have the right to amend a county charter by initiative. (Cal. Const., art. XI, § 3, subds. (a), (b).) It follows that the voters in a charter county may set supervisors’ compensation by an initiative that amends the county charter. The Board asserts: “[T]he California Constitution is silent regarding whether citizen initiatives may initially set supervisor compensation in charter counties.” “Where the Constitution is silent as to a charter county’s authority to engage in a legislative act, courts defer to the legislature . . . .” As just discussed, however, the state Constitution is far from silent on this point. Indeed, it could hardly be clearer. Jahr v. Casebeer (1999)70 Cal.App.4th 1250
(Jahr) held that, under section 1(b), supervisors’ compensation cannot be set by initiative. (Id. at pp. 1254-1260.) Meldrim v. Board of Supervisors (1976)57 Cal.App.3d 341