Voters for Responsible Retirement v. Board of Supervisors

KENNARD, J.

—I concur in the judgment and in all of parts I, III, and IV of the majority opinion. As for part II., I agree that article XI, section 1, subdivision (b) of the California Constitution (hereafter section 1(b)) neither prohibits nor guarantees the right of referendum on ordinances affecting the compensation of county employees. But I do not agree with the implication of the majority that an earlier version of the same constitutional provision (former § 5 of art. XI) secured to county voters the right of referendum on ordinances affecting county employee compensation.

I. Background

The California Constitution gives county voters a general power of referendum on county ordinances. Section 11 of article II provides: “Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide.” This provision derives from former section 1 of article IV, as amended in 1911.

In 1933, the Legislature decided to transfer its authority to set the compensation of county employees to the boards of supervisors of the various *787counties. To accomplish this objective, it enacted a statute and proposed a constitutional amendment, which the voters of the state then adopted.

The statute, former Political Code section 4056d, continued in force all existing state laws affecting county employee compensation “as ordinances of the respective counties to which they relate” and provided that such laws “may be superseded, modified or otherwise affected by ordinances hereafter adopted in the respective counties and subject to the rights of initiative, referendum and recall as reserved to the electors of such counties.” (Stats. 1933, ch. 643, § 1, pp. 1674-1675, italics added.)

The constitutional amendment affected former section 5 of article XI (hereafter former section 5). As amended in 1933, former section 5 conferred on the “boards of supervisors in the respective counties” authority to “regulate the number, method of appointment, terms of office or employment, and compensation of all deputies, assistants, and employees of the counties.” Former section 5 did not mention the right of referendum, but it did expressly validate former Political Code section 4056d, described above. The ballot pamphlet for the election on the 1933 amendment of former section 5 stated: “The act which is validated by this constitutional amendment carries out its purposes, and provides that present State laws fixing salaries shall be effective solely as local ordinances, and may be superseded by ordinance hereafter adopted, subject to the regular initiative and referendum powers of the people.” (Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Special Statewide Elec. (June 27, 1933) p. 11, italics added.)

In June 1970, article XI of the state Constitution was reorganized. As part of this revision, former section 5 was repealed and its substantive provisions reenacted under different section numbers. The provision of former section 5 giving the boards of supervisors authority over county employee compensation was moved to section 1(b) with nonsubstantive changes in wording.1

In November 1970, section 1(b) was amended to give the boards of supervisors authority to set the compensation of their own members. This amendment, unlike the 1933 amendment of former section 5, included an express reference to the referendum power: “[Ejach governing body shall *788prescribe by ordinance the compensation of its members, but the ordinance prescribing such compensation shall be subject to referendum.”2

II. Analysis

In this court, both the defendant Board of Supervisors of Trinity County (hereafter Board) and the plaintiff Voters for Responsible Retirement (hereafter Voters) have argued that the history and language of section 1(b) support their respective positions.

The Board’s position is that section 1(b) prohibits referendums on ordinances affecting county employee compensation. It reasons that because section 1(b) expressly provides for referendums on ordinances affecting compensation of supervisors, but not on ordinances affecting compensation of ordinary employees, it is both reasonable and necessary to infer that section 1(b) prohibits referendums in the latter situation.

Voters, on the other hand, contends that section 1(b) guarantees the right of referendum on ordinances affecting county employee compensation. It reasons that the 1933 amendment of former section 5 must be interpreted to effectuate the intent of the voters who enacted it, and that the voters’ intent, as shown by the validation of former Political Code section 4056d and by the portion of the ballot pamphlet quoted above, was to make ordinances affecting county employee compensation subject to referendum. Therefore, according to Voters, the 1933 amendment secured the right of referendum on county employee compensation ordinances. The right thus secured was unaffected by the repeal of former section 5, because its substance was reenacted in section 1(b).

Neither argument is persuasive.

The 1933 amendment of former section 5 did not secure the right of referendum on ordinances affecting county employee compensation. Because county voters enjoyed general referendum powers under former section 1 of article IV (now §11 of art. II), the Legislature recognized that *789compensation ordinances enacted by the boards of supervisors would be subject to referendum absent some statutory or constitutional provision barring referendum in this particular context. The language of former Political Code section 4056d, and the ballot pamphlet’s discussion of that statute, merely reflect and acknowledge this reality.3 Had the drafters of the 1933 amendment intended to provide an independent source in former section 5 for the right of referendum on ordinances affecting county employee compensation, they could have inserted language similar to that placed in the November 1970 amendment of section 1(b), which expressly secured the right of referendum on ordinances affecting the compensation of county supervisors. But they did not. Thus, the 1933 amendment of former section 5 did not guarantee the right of referendum on county employee compensation ordinances.

The November 1970 amendment of section 1(b) did not prohibit the referendum on ordinances affecting county employee compensation. The amendment expressly secured the referendum power for ordinances affecting county supervisor compensation, giving the referendum power for this particular class of county ordinances a source separate from and independent of the more general referendum guarantee embodied in section 11 of article n. The failure to similarly secure the referendum power for ordinances affecting the compensation of county employees did not have the effect of prohibiting the referendum in that context; it merely left the source of the referendum right for such ordinances where it had always been—in section 11 of article II. As the majority explains, it is understandable that the drafters of the November 1970 amendment chose to give the referendum over supervisors’ salaries an independent constitutional basis to assure county voters that the Legislature could never abrogate the voters’ authority to veto salary increases that county supervisors awarded themselves. Because the same inherent conflict of interest does not exist when supervisors vote on the compensation of other county employees, there was no similar need to give the referendum power a constitutional basis apart from (and more secure than) the general county referendum provision contained in section 11 of article II.

For these reasons, I agree with the majority that section 1(b) neither guarantees nor prohibits the right of referendum on ordinances affecting the *790compensation of county employees. Because the power of referendum on such ordinances never received an independent constitutional basis, that power is and has been subject to the control of the Legislature in matters of statewide concern. The Legislature has exercised this control through Government Code section 25123, subdivision (e), providing that an ordinance adopting or implementing a memorandum of understanding takes effect immediately, thereby precluding referendum.

Former section 5 read: “The boards of supervisors in the respective counties . . . shall regulate the number, method of appointment, terms of office or employment, and compensation of all deputies, assistants, and employees of the counties.” As enacted in 1970, section 1(b) read: “The governing body shall provide for the number, compensation, tenure, and appointment of employees.”

In full, section 1(b) now reads: “The Legislature shall provide for county powers, an elected sheriff, an elected district attorney, an elected assessor, and an elected governing body in each county. Except as provided in subdivision (b) of Section 4 of this article, each governing body shall prescribe by ordinance the compensation of its members, but the ordinance prescribing such compensation shall be subject to referendum. The Legislature or the governing body may provide for other officers whose compensation shall be prescribed by the governing body. The governing body shall provide for the number, compensation, tenure, and appointment of employees.”

No argument is made here that former Political Code section 4056d acquired constitutional force when it was validated by former section 5. The validation gave the statute validity as a statute, not as a part of the Constitution. It was treated as an ordinary statute in 1947, when it was repealed and reenacted as Government Code section 25301 (Stats. 1947, ch. 424, § 1, p. 1114, §5, pp. 1307-1308), and again in 1973, when Government Code section 25301 was itself repealed (Stats. 1973, ch. 140, § 9, p. 376).