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Date: 03-24-2020
Case Style:
City of Redondo Beach v. Alex Padilla, as Secretary of State, etc.
Case Number: B294016
Judge: Perluss, P.J.
Court: California Court of Appeals Second Appellate District, Division Seven on appeal from the Superior Court, County of Los Angeles
Plaintiff's Attorney: Xavier Becerra, Thomas S. Patterson, Stepan A. Haytayan and Jonathan M. Eisenberg
Defendant's Attorney: Michael W. Webb, Lisa Bond, T. Peter Pierce and Marvin E. Bonilla
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In 2015 the California Legislature enacted the California
Voter Participation Rights Act (Elec. Code, §§ 14050-14057)1
(VPRA) to remedy the typically low voter turnout in off-cycle local
elections.
2 The VPRA requires political subdivisions in the state
to consolidate local elections with statewide on-cycle elections if
the local jurisdiction’s turnout falls at least 25 percent below the
locality’s average voter turnout in the previous four statewide
general elections.
The City of Redondo Beach challenged the VPRA on the
ground it improperly infringed the plenary authority conferred on
charter cities by article XI, section 5, of the California
Constitution to schedule their own elections for local offices. The
superior court upheld the City’s challenge, issued a writ of
mandate barring the Secretary of State from enforcing the VPRA
against the City and declared it unconstitutional as applied to
charter cities. We affirm the judgment to the extent it restrains
the Secretary from enforcing the VPRA against the City on the
1 Statutory references are to this code unless otherwise
stated.
2 “Elections that are held at the same time as statewide
elections are often referred to as ‘on-cycle’ elections, while
elections held at other times are often referred to as ‘off-cycle’
elections.” (Sen. Rules Com., Off. of Sen. Floor Analyses,
Analysis of Sen. Bill No. 415 (2015-2016 Reg. Sess.) as amended
June 23, 2015, p. 5.)
3
ground the Legislature failed to clearly provide the VPRA applies
to charter cities.
FACTUAL AND PROCEDURAL BACKGROUND
1. The VPRA
The VPRA was signed into law on September 1, 2015 and
became operative January 1, 2018. Section 14052,
subdivision (a), provides that “a political subdivision shall not
hold an election other than on a statewide election date if holding
an election on a nonconcurrent date has previously resulted in a
significant decrease in voter turnout.” A “‘[p]olitical subdivision’”
is defined as “a geographic area of representation created for the
provision of government services, including, but not limited to, a
city, a school district, a community college district, or other
district organized pursuant to state law.” (§ 14051, subd. (a).)
“‘Significant decrease in voter turnout’ means the voter turnout
for a regularly scheduled election in a political subdivision is at
least 25 percent less than the average voter turnout within that
political subdivision for the previous four statewide general
elections.”3 (Id., subd. (b).)
3 Other provisions permit a political subdivision a respite
from enforcement if, by the operative date of January 1, 2018, it
has adopted a plan to consolidate a future election with a
statewide election no later than the November 8, 2022 statewide
general election (§ 14052, subd. (b)); authorize the superior court
to implement appropriate remedies for a violation (§ 14053);
authorize a voter who resides in the political subdivision to sue to
enforce the VPRA if the political subdivision has failed to do so
(§ 14055); and authorize the recovery of reasonable attorney fees
and costs (§ 14054).
4
On July 11, 2017 the Attorney General issued an opinion
concluding the VPRA applies to charter cities and school districts
governed by city charter.
2. The City of Redondo Beach’s Challenge to the VPRA
The City of Redondo Beach is a charter city. Its charter
requires all municipal and school board elections to be held on
“the first Tuesday after the first Monday in March of each
succeeding odd-numbered year . . . .” School board elections are
required to be consolidated with municipal elections.
Notwithstanding these charter provisions, in October 2017 the
City school board unanimously adopted a resolution rescheduling
board member elections to the first Tuesday after the first
Monday in November of each even-numbered year beginning in
November 2020 to encourage voter participation and to comply
with the VPRA. The board’s resolution relied on an analysis of
voter turnout rates that demonstrated “a significant decrease in
voter turnout in odd-numbered years as compared to statewide
election dates.”
The Redondo Beach City Council considered the effect of
the VPRA at a November 7, 2017 meeting. A memorandum
prepared by the City Clerk and the City Attorney advised the
Council there was a question as to the applicability of the VPRA
to charter cities but acknowledged that the City’s last four local
off-cycle elections showed at least a 25 percent voter turnout
decline from the average turnout of the previous four statewide
general elections. A memorandum from the office of the Los
Angeles County Registrar-Recorder/County Clerk to Redondo
Beach’s City Clerk compared the estimated costs to the City for
on-cycle and off-cycle municipal elections: The costs for on-cycle
general municipal elections (that is, elections consolidated with
5
statewide general elections) ranged between $97,000 and
$111,000, while the projected costs for stand alone, off-cycle
elections ranged between $588,000 and $593,000.
Despite these data and the school board’s action, the City
initiated this lawsuit, filing a petition for writ of mandate under
Code of Civil Procedure section 1085 and a complaint for
declaratory relief against the State of California and the
Secretary of State.4 The City sought a writ of mandate
prohibiting the Secretary from applying the VPRA to the City;
injunctive relief precluding the Secretary from enforcing the
VPRA against the City; and a judicial declaration the VPRA is
unconstitutional as applied to charter cities.
3. The Superior Court’s Decision
The matter was briefed for the court;
5 and the League of
California Cities, an association of cities throughout California,
4 The City erroneously named the State of California as a
defendant. A mandamus action contesting the constitutionality
of a state law is properly brought against the state officer who
bears the duty of enforcing that law. (American Indian Health &
Services Corp. v. Kent (2018) 24 Cal.App.5th 772, 784;
Covarrubias v. Cohen (2016) 3 Cal.App.5th 1229, 1231, fn. 3.)
5 With their briefing, both sides submitted declarations from
their expert witnesses. The City’s expert, Douglas Johnson,
Ph.D., runs an election consulting firm that advises jurisdictions
on redistricting and other election issues. Dr. Johnson opined
that voter turnout in off-cycle elections sometimes exceeds the
turnout in on-cycle elections but had never attempted to quantify
the relationship. He also opined that low voter turnout is
essentially benign, reflecting the fact that “residents are happy
with how things are going” and that off-cycle local elections tend
to “bring out voters who are particularly interested in and aware
6
was permitted to file an amicus curiae brief in support of the
City’s position the VPRA does not apply to charter cities.
After a hearing the superior court made no specific findings
but entered judgment in favor of the City and issued a writ of
of issues in their local jurisdiction.” He also pointed to the
problem known as “voter roll off,” which refers to the tendency of
some voters to tire of lengthy ballots and leave them incomplete,
to the detriment of local races found in the latter part of the
ballot.
The Secretary’s expert, Zoltan L. Hajnal, Ph.D., a professor
of political science at the University of California, San Diego,
opined that aligning municipal elections with statewide elections
dramatically increases voter turnout and cited multiple studies
confirming this effect. Professor Hajnal was the lead author of a
2002 study sponsored by the Public Policy Institute of California
that collected and reviewed available voter turnout data and
concluded that consolidation of local elections with statewide
elections offered “[t]he first and most important step to increase
voter participation in city elections.” (Hajnal et al., Municipal
Elections in California: Turnout, Timing, and Competition (2002)
p. xi.) Hajnal’s subsequent book, America’s Uneven Democracy:
Race, Turnout, and Representation in City Politics (Cambridge
Press 2010), won the American Political Science Association’s
award for best book on urban politics. Recent studies have
confirmed Professor Hajnal’s view that the voters in off-cycle
elections are less representative of the public as a whole than
those in on-cycle contests. (See Kogan et al., Election Timing,
Electorate Composition, and Policy Outcomes: Evidence from
School Districts (2018) 62 Am.J. of Pol. Sci. 637 [finding voters in
on-cycle elections in California significantly more representative
of the voting age population in terms of race, income and age
than voters in off-cycle elections]; Anzia, Timing and Turnout:
How Off-Cycle Elections Favor Organized Groups (U. Chicago
Press 2014).)
7
mandate prohibiting the Secretary from enforcing the VPRA
against the City and declared the VPRA unconstitutional as
applied to charter cities.
DISCUSSION
1. Standard of Review
A writ of mandate “may be issued by any court . . . to
compel the performance of an act which the law specifically
enjoins, as a duty resulting from an office, trust, or station, or to
compel the admission of a party to the use and enjoyment of a
right or office to which the party is entitled, and from which the
party is unlawfully precluded . . . .” (Code Civ. Proc., § 1085,
subd. (a).) Mandamus under section 1085 is the appropriate
vehicle to challenge the constitutionality or validity of statutes or
other official acts. (See Jolicoeur v. Mihaly (1971) 5 Cal.3d 565,
570, fn. 2 [mandate is the appropriate remedy for compelling a
public official to act in accordance with the law and challenging
the constitutionality or validity of a statute].) Because the
construction and validity of a statute is a question of law, we
review the superior court’s decision de novo. (Vergara v. State of
California (2016) 246 Cal.App.4th 619, 642; accord, Boyer v.
County of Ventura (2019) 33 Cal.App.5th 49, 53.)
2. The Authority of Charter Cities over the Timing of
Municipal Elections
California law recognizes two types of cities. A city
organized under the general law of the Legislature is referred to
as a general law city. (Gov. Code, § 34102.) A municipality
organized under a charter, like the City of Redondo Beach, is a
charter city. (Gov. Code, § 34101.) As the Supreme Court
explained in State Building & Construction Trades Council of
8
California v. City of Vista (2012) 54 Cal.4th 547, 555 (Vista),
“Charter cities are specifically authorized by our state
Constitution to govern themselves, free of state legislative
intrusion, as to those matters deemed municipal affairs.
Article XI, section 5, subdivision (a) of the California Constitution
provides: ‘It shall be competent in any city charter to provide that
the city governed thereunder may make and enforce all
ordinances and regulations in respect to municipal affairs, subject
only to restrictions and limitations provided in their several
charters and in respect to other matters they shall be subject to
general laws. City charters adopted pursuant to this Constitution
shall supersede any existing charter, and with respect to
municipal affairs shall supersede all laws inconsistent therewith.’”
(Italics omitted.) Known as the home rule doctrine, the broad
authority of charter cities was originally “‘enacted upon the
principle that the municipality itself knew better what it wanted
and needed than the state at large, and to give that municipality
the exclusive privilege and right to enact direct legislation which
would carry out and satisfy its wants and needs.’ [Citation.] The
provision represents an ‘affirmative constitutional grant to
charter cities of “all powers appropriate for a municipality to
possess . . .” and [includes] the important corollary that “so far as
‘municipal affairs’ are concerned,” charter cities are “supreme and
beyond the reach of legislative enactment.”’” (Id. at pp. 555-556;
see Johnson v. Bradley (1992) 4 Cal.4th 389, 394-398; California
Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d
1, 12 (CalFed).)
In Johnson v. Bradley, supra, 4 Cal.4th at page 398 the
Court elaborated on the constitutional definition of “municipal
affair”: “Whereas subdivision (a) of article XI, section 5,
9
articulates the general principle of self-governance,
subdivision (b) sets out a nonexclusive list of four ‘core’ categories
that are, by definition, ‘municipal affairs.’ The first three
categories of municipal affairs are: (1) regulation, etc., of ‘the city
police force’; (2) ‘subgovernment in all or part of a city’; and
(3) ‘conduct of city elections.’ The final category gives charter
cities exclusive power to regulate the ‘manner’ of electing
‘municipal officers.’ It provides, ‘(4) plenary authority is hereby
granted, subject only to the restrictions of this article, to provide
[in all city charters for] the manner in which, the method by
which, the times at which, and the terms for which the several
municipal officers . . . shall be elected.’” (Italics & fn. omitted.)
Charter cities’ constitutional authority over municipal
elections is reflected in statutes governing election timing.
Section 1000 currently sets forth three “established election
dates” for elections within the state: “(a) The first Tuesday after
the first Monday in March of each year[;] (b) The second Tuesday
of April in each even-numbered year[; and] (c) The first Tuesday
after the first Monday in November of each year.” Section 1003,
subdivision (b), however, provides that “[t]his chapter shall not
apply to the following: . . . (b) Elections held in chartered cities or
chartered counties in which the charter provisions are
inconsistent with this chapter,” thus acknowledging and
preserving the authority of charter cities over election timing.
The City’s charter is consistent with section 1000, as it
identifies “the first Tuesday after the first Monday in March of
each succeeding odd-numbered year” for elections to fill elective
offices within the City. (Redondo Beach Charter, § 18.) The
charter further provides, “All elections held under this Charter
shall be held and conducted in accordance with the provisions of
10
the Elections Code of the State of California as the same now
exists or may hereafter be amended, for the holding of elections
in general law cities unless such provisions are in conflict with
the provisions of this Charter or unless an ordinance providing
for the manner of holding and conducting elections is adopted by
the City Council.” (Id., § 18.2.)
If construed to apply to charter cities, the VPRA conflicts
with the City’s charter, requiring the City to adopt an ordinance
altering the date of its municipal elections. When a statute
clearly intended to apply to charter cities appears to conflict with
a city’s constitutional home rule authority, a court must utilize a
four-part analytical framework to determine whether the city’s
authority must cede to the state’s: (1) “whether the city
ordinance at issue regulates an activity that can be characterized
as a ‘municipal affair’”; (2) whether there is “‘an actual conflict
between [local and state law]’”; (3) “whether the state law
addresses a matter of ‘statewide concern’”; and (4) “whether the
law is ‘reasonably related to . . . resolution’ of that concern
[citation] and ‘narrowly tailored’ to avoid unnecessary
interference in local governance.” (Vista, supra, 54 Cal.4th at
p. 556, quoting CalFed, supra, 54 Cal.3d at pp. 16-17; accord,
Marquez v. City of Long Beach (2019) 32 Cal.App.5th 552, 565.)
3. The Legislature Has Failed To Demonstrate a Clear
Intention To Apply the VPRA to Charter Cities
a. Courts have usually insisted on statutory language
clearly including charter cities before engaging in the
CalFed/Vista constitutional analysis
“‘The first principle of statutory construction requires us to
interpret the words of the statute themselves, giving them their
ordinary meaning, and reading them in the context of the statute
11
. . . as a whole.’” (People v. Gonzales (2017) 2 Cal.5th 858, 868.)
The “plain meaning” rule, however, “does not prohibit a court from
determining whether the literal meaning of a statute comports
with its purpose or whether such a construction of one provision is
consistent with other provisions of the statute. The meaning of a
statute may not be determined from a single word or sentence; the
words must be construed in context, and provisions relating to the
same subject matter must be harmonized to the extent possible.”
(Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735; see Mendoza v.
Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1084 [“‘[w]e do not construe
statutory language in isolation, but rather as a thread in the
fabric of the entire statutory scheme of which it is a part’”];
DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983,
992 [if the statutory language is reasonably subject to multiple
interpretations, a court will consider extrinsic aids, such as “‘“‘the
legislative history, public policy, contemporaneous administrative
construction, and the statutory scheme of which the statute is a
part’”’”].)
The Secretary contends the plain language of the VPRA,
which applies to a “political subdivision” defined as “a geographic
area of representation created for the provision of government
services, including, but not limited to, a city . . . ,” establishes the
Legislature’s intent that the VPRA applies to all cities, not just
general law cities. The Legislature, however, is usually quite
specific when it intends the term “political subdivision” to include
charter cities. For instance, the Government Code often specifies
“charter cities” or “any city” when defining or utilizing the term
“political subdivision.” (See, e.g., Gov. Code, §§ 53208.5, 53217.5
& 53060.1 [setting various limits on benefits for “members of the
legislative bodies of all political subdivisions of the state,
12
including charter cities and charter counties”], 8557, 8698, 12650
& 12424 [“political subdivision” includes “any city, city and
county [or] county”], 37364, subd. (e) [“[t]he provisions of this
section shall apply to all cities, including charter cities”].)6
Likewise, the Supreme Court and courts of appeal have
often demanded a clearer indication than the use of a general
6 The City and amicus curiae League of California Cities
identify several other statutes defining “political subdivision” to
include charter cities or otherwise specifying their application to
charter cities. (See, e.g., Pub. Util. Code, §§ 5810 [“political
subdivision” defined as “a general law city, general law county,
charter city, charter county, charter city and county”], 21010
[“political subdivision” defined as “any county, city, city and
county . . . or other political entity”], 21690.6 [“[t]he provisions of
this article shall apply to any airport owned or operated by a
political subdivision, including a charter city”]; Rev. & Tax. Code,
§§ 30462 [section 30111 prohibits imposition of taxes by “any city,
charter city, town, county, charter county, city and county, . . . or
other political subdivision or agency of this state”], 18670,
subd. (a) [“political subdivision” includes “a city organized under
a freeholders’ charter”]; Pub. Contract Code, §§ 7203, subd. (c)
[applies to “a city, charter city, county, charter county, . . . and
any other political subdivision”], 20671, subd. (b) [defining “public
entity” as “any city, charter city, city and county, . . . or political
subdivision of the state”]; Bus. & Prof. Code, § 16117 [“‘City’
includes a charter city”]; Health & Saf. Code, § 12081, subd. (e)
[“no city, county, city and county, or other political subdivision of
this state, including, but not limited to, a chartered city, county,
or city and county”]; Elec. Code, § 306 [term “city measure”
includes “any proposed city charter”]; Veh. Code, § 34002,
subd. (a) [“no state agency, city, city and county, county, or other
political subdivision of this state, including, but not limited to, a
chartered city, city and county, or county, shall adopt or enforce
any ordinance or regulation . . . inconsistent with this division”].)
13
term, be it “a political subdivision” or “a city,” before concluding a
statute is intended to apply to charter cities.7 In Vista, supra,
54 Cal.4th at page 554 the Supreme Court cited an earlier version
of the prevailing wage law that “expressly referred to charter
cities in a provision requiring such cities to pay prevailing wages
in contracts for street or sewer improvement work.” Similarly, in
Johnson v. Bradley, supra, 4 Cal.4th 389, the statute at issue (the
Political Reform Act of 1974, Gov. Code, §§ 81000-91015)
7 In fact, the term “political subdivision of the state” has
been construed to distinguish counties from “municipal
corporations” with separate and distinct powers and purposes. In
rejecting a claim that former Civil Code section 3287 applied to
municipal corporations, the Supreme Court explained in Abbott v.
City of Los Angeles (1958) 50 Cal.2d 438, 467-468, “‘A county is a
governmental agency or political subdivision of the state,
organized for purposes of exercising some functions of the state
government, whereas a municipal corporation is an incorporation
of the inhabitants of a specified region for purposes of local
government.’ This view was relied upon and reiterated in Otis v.
City of Los Angeles (1942) 52 Cal.App.2d 605, 611-612, wherein it
was decided that actions for declaratory relief under section 1060
of the Code of Civil Procedure may be maintained against
municipal corporations. In so deciding the court expressly
recognized . . . [citations] that section 1060 of the Code of Civil
Procedure does not authorize the bringing of an action for
declaratory relief against the state or its political subdivision, but
declared [citation] that ‘respondents’ contention that the legal
status of a municipal corporation is akin to that of a county
cannot be sustained either upon reason or authority.’” (See, e.g.,
Wat. Code, §§ 83-60 [addressing powers of “[a]ny district,
municipality, or political subdivision of the State”], 8618
[addressing power of “[a]ll political subdivisions, agencies of the
State, and municipal and quasi-municipal corporations” to make
agreements relating to flood control].)
14
contained a provision (Gov. Code, § 82008) expressly defining
“city” to mean “a general law or a chartered city.” (See also
Anderson v. City of San Jose (2019) 42 Cal.App.5th 683, 694 [as
provided by Gov. Code, § 54221, subd. (a), the Surplus Land Act
(Gov. Code, §§ 54220-54233) “applies to ‘every city, whether
organized under general law or by charter’”].) In Marquez v. City
of Long Beach, supra, 32 Cal.App.5th at page 569, this court found
the minimum wage provisions of certain Industrial Welfare
Commission’s wage orders apply to charter cities because the
wage orders used the term “‘any city.’” (See also Baggett v. Gates
(1982) 32 Cal.3d 128, 131 [Public Safety Officers Procedural Bill of
Rights Act (Gov. Code, §§ 3300-3311) applies to “any” public safety
department (Gov. Code, § 3309.5, subd. (a))]; Trader Sports, Inc. v.
City of San Leandro (2001) 93 Cal.App.4th 37, 45 ([determining
provisions of Proposition 62 to be “facially applicable to charter
cities”; Gov. Code, § 53720, subd. (a), defined “‘local governments’
for purposes of implementing Proposition 62’s provisions as
including ‘any county, city, city and county, including a chartered
city or county’”].)
Only two recent decisions have not addressed this
threshold statutory issue: Jauregui v. City of Palmdale (2014)
226 Cal.App.4th 781 (Jauregui) and City of Huntington Beach v.
Becerra (2020) 44 Cal.App.5th 243. In each of those cases, the
court engaged in the CalFed/Vista constitutional analysis
without first considering whether the Legislature intended the
statute to apply to charter cities.8 Their significance for our
8 Our review of the briefing in those cases confirms that
neither city made a statutory argument regarding the
Legislature’s intention and instead focused on the conflict
15
decision on this point is therefore quite limited: “[I]t is axiomatic
that cases are not authority for propositions not considered.”
(People v. Alvarez (2002) 27 Cal.4th 1161, 1176; see Johnson v.
Bradley, supra, 4 Cal.4th at p. 415 (conc. & dis. opn. of Mosk, J.).)
b. The legislative history of the VPRA does not indicate a
clear intention to include charter cities
The VPRA does not include a comprehensive definition of
its intended reach. As introduced by State Senator Benjamin
Hueso, Senate Bill No. 415 stated, “It is the intent of the
Legislature to enact legislation to prohibit a political subdivision
from holding an election on a date other than the date of a
statewide direct primary election or statewide general election if
doing so would result in a significant decrease in voter turnout as
compared to the voter turnout at a statewide election.” (Sen. Bill
No. 415 (2015-2016 Reg. Sess.) § 1, as introduced Feb. 25, 2015.)
An amended version designated the title of the bill and defined
“political subdivision” as “a geographic area of representation
created for the provision of government services, including, but
not limited to, a city, a school district, a community college
district, or other district organized pursuant to state law.” (Sen.
Bill No. 415 (2015-2016 Reg. Sess.) as amended Apr. 6, 2015.)
The definition of “political subdivision” remained unchanged
thereafter and is codified in section 14051, subdivision (a).
Senate Bill No. 415’s definition of “political subdivision”
was apparently borrowed from the California Voting Rights Act,
Elections Code section 14025 et seq. (CVRA), enacted in 2002 to
prevent political subdivisions from using at-large elections to
between the respective statutes at issue and the cities’
constitutional home rule authority.
16
dilute the votes of members of a protected class. (See § 14026,
former subd. (c), added by Stats. 2002, ch. 129, § 1.) Ruling on a
challenge to the CVRA in Jauregui, supra, 226 Cal.App.4th 781,
Division Five of this court assumed the Legislature intended the
CVRA to apply to charter cities and evaluated the statute under
the analytical framework of CalFed and Vista, concluding that
the dilution of votes of a protected class is a matter of statewide
concern and does not unnecessarily infringe on the constitutional
authority of charter cities. (Jauregui, at pp. 795-802.)
Only two weeks before the introduction of Senate Bill
No. 415, however, Assemblymember Roger Hernández, a
co-author of the bill, introduced Assembly Bill No. 277 (2015-2016
Reg. Sess.), which amended the CVRA’s definition of political
subdivision to encompass “a geographic area of representation
created for the provision of government services, including, but
not limited to, a general law city, general law county, charter city,
charter county, charter city and county, a school district,
community college district, or other district organized pursuant to
state law.” (§ 14026, subd. (c).) Enacted into law (see Stats. 2015,
ch. 724, § 2), Assembly Bill No. 277 expressly affirmed the
Legislature’s intent to clarify the CVRA’s application to charter
cities and counties and to codify the holding in Jauregui. (Sen.
Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of
Assem. Bill No. 277 (2015-2016 Reg. Sess.) as amended Apr. 7,
2015, p. 3.)
The City contends this essentially contemporaneous
amendment of the CVRA to expressly include charter cities and
introduction of the VPRA using the original, less specific
definition of “political subdivision” demonstrate the Legislature
did not intend the VPRA to apply to charter cities. Otherwise, it
17
argues, the Legislature would have utilized the more inclusive
definition of a political subdivision in the VPRA. (See Scher v.
Burke (2017) 3 Cal.5th 136, 144-145 [“[a]s a general rule, when
the Legislature uses a term in one provision of a statute but
omits it from another . . . we generally presume that the
Legislature did so deliberately, in order ‘“to convey a different
meaning”’”].)
Indeed, an analogous legislative background led the
Supreme Court in Ector v. City of Torrance (1973) 10 Cal.3d 129
(Ector) to reject a claim that a state statute barring local agencies
from requiring employees to live within their jurisdiction
prevailed over a contrary city charter provision. There, the City
of Torrance fired an employee when it was discovered he lived
outside the city. The employee sued for reinstatement citing
Government Code section 50083, enacted in 1970, which
provided, “No local agency or district shall require that its
employees be residents of such local agency or district.”
Government Code section 50001 defined “‘[l]ocal agency’ as used
in this division” to mean “county, city, or city and county, unless
the context otherwise requires.” The Court reasoned the
definition did not include charter cities because, in the legislative
session immediately following the adoption of section 50083, the
Legislature had rejected an attempt in the Assembly to amend
the definition of “local agency” to expressly include charter cities
and to limit cities’ constitutional authority to implement
residency requirements. (Ector, at pp. 133-134.) As the Court
explained, “We may reasonably infer that by so voting the
Legislature rejected the very extension of the statute which
appellant now asks us to adopt under the guise of judicial
construction. This, of course, we may not do.” (Id. at p. 134.)
18
In addition to analyzing this legislative history of
Government Code section 50083, the Ector Court recognized that
broadly construing the definition of “local agency” to include a
charter city would raise a serious constitutional question and
explained, “We must presume that in adopting section 50083 the
Legislature intended to enact a valid statute.” (Ector, supra,
10 Cal.3d at p. 133.) Accordingly, to prevent a conflict with the
“explicit constitutional authorization” of charter cities to set their
employees’ qualifications, the Court held the Legislature “meant
to limit [section 50083’s] reach to general law cities.” (Ibid.; see
People v. Buza (2018) 4 Cal.5th 658, 682 [“a statute will be
interpreted to avoid serious constitutional questions if such an
interpretation is fairly possible”]; People v. Gutierrez (2014)
58 Cal.4th 1354, 1373 [“[w]hen a question of statutory
interpretation implicates constitutional issues, . . . ‘“[i]f a statute
is susceptible of two constructions, one of which will render it
constitutional and the other unconstitutional in whole or in part,
or raise serious and doubtful constitutional questions, the court
will adopt the construction which, without doing violence to the
reasonable meaning of the language used, will render it valid in
its entirety, or free from doubt as to its constitutionality, even
though the other construction is equally reasonable”’”]; see also
Santa Clara County Local Transportation Authority v. Guardino
(1995) 11 Cal.4th 220, 230 [courts “‘“will not decide constitutional
questions where other grounds are available and dispositive of
the issues of the case”’”].)9
9 A legislative proposed, voter approved constitutional
amendment in 1976 revised Article XI, section 10, of the
Constitution to disallow residency requirements of the sort relied
on by the City of Torrance.
19
In addition to Assembly Bill No. 277, Assemblymember
Hernández introduced Assembly Bill No. 254 (2015-2016 Reg.
Sess.) during the same legislative session. That bill sought to
require cities, school districts, community college districts and
special districts to hold their general elections in conjunction with
statewide elections by deleting the off-cycle election dates from
section 1000, as well as the exemption for charter cities in
section 1003. Citing the plethora of research (including Professor
Hajnal’s) showing that consolidation of local elections with
statewide elections is the single best means of increasing voter
turnout, the bill declared its intent to apply to every political
subdivision in the state, including charter cities and counties.
(See Assem. Bill No. 254 (2015-2016 Reg. Sess.) as amended
Mar. 18, 2015, §§ 2-4; Assem. Com. on Elections and
Redistricting, Analysis of Assem. Bill No. 254 (2015-2016 Reg.
Sess.) as amended March 18, 2015.) On June 1, 2015, however,
the bill was amended to delete the proposed amendments to
section 1003, which, in essence, ensured any amendments to
section 1000 would not apply to charter cities that had adopted
conflicting election dates in their charters. Ultimately, Governor
Jerry Brown vetoed this bill, citing the changes to election timing
already enacted by Senate Bill No. 415. (See Assem. Bill No. 254
(2015-2016 Reg. Sess.) §§ 1-5; Governor’s veto message to Assem.
on Assem. Bill No. 254 (Oct. 1, 2015) (2015-2016 Reg. Sess.); Off.
of Assem. Floor Analysis, Governor’s Veto analysis of Assem. Bill
No. 254 (2015-2016 Reg. Sess.) as enrolled Sept. 4, 2015, p. 2.)
But the history of Assembly Bill No. 254 indicates its author
encountered significant resistance to his proposal to withdraw
section 1003’s exemption for charter cities and suggests a similar
struggle would have ensued if there had been an effort to
20
expressly include charter cities within the reach of Senate Bill
No. 415.
Against this legislative backdrop the Attorney General
issued an opinion concluding the VPRA could be constitutionally
applied to charter cities. (100 Ops.Cal.Atty.Gen. 4 (2017).) The
opinion stated, “As a threshold matter, we find that the
Legislature intended the Act to apply to charter cities and school
districts.” (Id. at p. 7.) In support of this conclusion the Attorney
General relied on the purported plain meaning of “city” and
“political subdivision,” without confronting the inherent
ambiguity of those terms. Further, his opinion presumes the
definition of “political subdivision” was taken from the CVRA, as
do we, but asserts that definition was found by the Jauregui
court to include charter cities without addressing the fact that
the Jauregui court did not actually construe the statute and find
an intent to include charter cities, but simply proceeded directly
to the CalFed/Vista constitutional analysis.
Finally, the Attorney General’s opinion cites the comments
of Senator Hueso, who indicated his understanding the
application of the VPRA to charter cities would not violate the
Constitution. (100 Ops.Cal.Atty.Gen., supra, at p. 7, fn. 30, citing
Assem. Standing Com. on Elections and Redistricting, Hearing
(July 1, 2015), testimony of Sen. Ben Hueso [stating his view the
VPRA does not violate the constitutional rights of charter cities].)
As amicus curiae League of California Cities points out, “[T]he
expressions of individual legislators generally are an improper
basis upon which to discern the intent of the entire Legislature.”
(People v. Farrell (2002) 28 Cal.4th 381, 394; see Myers v. Philip
Morris Companies, Inc. (2002) 28 Cal.4th 828, 845 [“we have
repeatedly declined to discern legislative intent from comments
21
by a bill’s author because they reflect on the views of a single
legislator instead of those of the Legislature as a whole”].) More
telling is the comment on charter cities found in legislative
analyses of Senate Bill No. 415 that acknowledge that charter
cities have substantial autonomy over the rules governing the
election of municipal officers and observes “By potentially
compelling charter cities to change the dates of their regularly
scheduled municipal elections, this bill goes to the heart of [that]
autonomy. . . . This bill does not explicitly address the question
of whether it is intended to be applicable to charter cities,
however, so it is unclear whether those cities would be subject to
a lawsuit under this bill.” (Assem. Floor Analysis, 3d reading
analysis of Sen. Bill No. 415 (2015-2016 Reg. Sess.) as amended
June 23, 2015, at p. 2; Assem. Com. on Elections and
Redistricting, Analysis of Sen. Bill No. 415 (2015-2016 Reg. Sess.)
as amended June 23, 2015, p. 5.)
This comment, especially when viewed in light of Assembly
Bill No. 277’s contemporaneous amendment of the CVRA to
expressly include charter cities, reinforces our view that the
Legislature deliberately left unresolved the question whether the
VPRA applies to charter cities, placing on the courts the
responsibility to divine intent from ambiguous language. Under
these circumstances, guided by the precept that, when
reasonable, we will construe a statute to render it free from doubt
as to its constitutionality, where the Constitution confers plenary
authority on charter cities to set the timing of their elections, we
will not infer an intent to contravene that authority without more
explicit guidance from the Legislature.10
10 Because we affirm the superior court’s judgment issuing a
writ of mandate prohibiting the Secretary of State from enforcing
Outcome:
The judgment of the superior court ordering a peremptory
writ of mandate is affirmed. The City is to recover its costs on
appeal.
Plaintiff's Experts:
Defendant's Experts:
Comments: