Articles Posted in California Courts of Appeal

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In November 1992, San Diego voters approved an amendment to the city charter that established a term limit for members of the San Diego City Council. Bryan Pease was a city council candidate who did not qualify for the November 2018 general election. He contended Councilmember Lorie Zapf, who received the most votes in the primary election, was termed out of office and ineligible to run in the general election, and he should have been placed on the ballot instead. Councilmember Zapf represented District 6 during her first term of office and represented District 2 during her second term of office. As a result of redistricting that occurred during Councilmember Zapf's first term of office, she resided in District 2 for both terms. Based on her residency, Pease contended Councilmember Zapf already served two consecutive terms from the same district and was thus termed out of office. The Court of Appeal determined this interpretation was not supported by the language of the term limit provision and failed to take into account other relevant charter provisions, including the impact of the redistricting provision. “The term limit provision regulates the number of terms an incumbent may serve on behalf of the electors of a given district, and is not dependent solely on residency.” The Court held Councilmember Zapf was eligible for reelection in the November 2018 general election. View "Pease v. Zapf" on Justia Law

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Mendocino County Ballot Measure AI, which imposed a tax on commercial cannabis businesses, was approved by a simple majority of county voters. The trial court dismissed a challenge and denied plaintiffs’ motion for a preliminary injunction. The court of appeal affirmed, rejecting an argument that under a correct interpretation of article XIII of the California Constitution the tax imposed by Measure AI was not a general tax but, together with a related advisory measure, amounted to a special tax requiring approval by a supermajority of county voters. The court also rejected an alternative argument that Measure AI did not involve a tax at all, and instead imposed an unlawful fee. Because Measure AJ did not in any way limit the County’s ability to spend the proceeds collected under Measure AI, the tax necessarily and by its terms remained a general tax. View "Johnson v. County of Mendocino" on Justia Law

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Judge Persky was appointed to the superior court in 2003 and has been reelected. Dauber and others submitted a “Petition for Recall of Judge Aaron Persky” to the Registrar of Voters (Elections Code 11006, 11020-11022). Judge Persky responded that under the California Constitution, the Secretary of State was the proper official for the recall of state officers and that the petition contained an “incorrect and misleading” demand for an election to choose a successor because a vacancy would be filled by the Governor. An amended recall petition was submitted to the Registrar and approved for circulation. Judge Persky sought a temporary restraining order to compel the Registrar to withdraw its certification and refer the matter to the Secretary of State; to enjoin the petition’s circulation until the Secretary of State certified it; and to enjoin circulation while the petition contained the "misleading" statement. The court of appeal affirmed that the Registrar was the proper official to approve recall petitions for superior court judges and that the Persky recall petition was not misleading. The statutory process for recall of a “local officer” was expressly made applicable to recall of a superior court judge and is not contrary to the state constitution; it does not impermissibly distinguish between appellate courts and superior courts, including their classification as “state” or “local” officers. View "Perksy v. Bushey" on Justia Law

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Judge Persky was appointed to the superior court in 2003 and has been reelected. Dauber and others submitted a “Petition for Recall of Judge Aaron Persky” to the Registrar of Voters (Elections Code 11006, 11020-11022). Judge Persky responded that under the California Constitution, the Secretary of State was the proper official for the recall of state officers and that the petition contained an “incorrect and misleading” demand for an election to choose a successor because a vacancy would be filled by the Governor. An amended recall petition was submitted to the Registrar and approved for circulation. Judge Persky sought a temporary restraining order to compel the Registrar to withdraw its certification and refer the matter to the Secretary of State; to enjoin the petition’s circulation until the Secretary of State certified it; and to enjoin circulation while the petition contained the "misleading" statement. The court of appeal affirmed that the Registrar was the proper official to approve recall petitions for superior court judges and that the Persky recall petition was not misleading. The statutory process for recall of a “local officer” was expressly made applicable to recall of a superior court judge and is not contrary to the state constitution; it does not impermissibly distinguish between appellate courts and superior courts, including their classification as “state” or “local” officers. View "Perksy v. Bushey" on Justia Law

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Parcel 27 (22 acres) was proposed for development with 44 single-family homes, 7.9 acres of public parkland, a bike path, and dog park. The planning commission recommended and the city council adopted an amendment to Parcel 27's general plan designation from Administrative Professional Office (APO) to Low-Density Single Family Residential, R-20. After the amendment could no longer be challenged, the council changed Parcel 27's zoning designation from APO to R-20. Opponents filed a referendum challenging the rezoning. The city clerk notified them that the referendum met the requirements of the Elections Code. The city attorney prepared a staff report, indicating that once a referendum petition is certified, the ordinance is suspended and the city council must reconsider the ordinance, but advised that “a referendum seeking to repeal a zoning amendment which would result in a zoning ordinance that is inconsistent with a general plan is a legally invalid referendum.” The council voted to refuse to repeal the ordinance or to place the issue on the ballot because repeal would result in reversion to APO zoning and create an inconsistency between the zoning and the general plan. The court of appeal held that the referendum was not invalid and the issue must be placed on the ballot. View "Save Lafayette v. City of Lafayette" on Justia Law

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Parcel 27 (22 acres) was proposed for development with 44 single-family homes, 7.9 acres of public parkland, a bike path, and dog park. The planning commission recommended and the city council adopted an amendment to Parcel 27's general plan designation from Administrative Professional Office (APO) to Low-Density Single Family Residential, R-20. After the amendment could no longer be challenged, the council changed Parcel 27's zoning designation from APO to R-20. Opponents filed a referendum challenging the rezoning. The city clerk notified them that the referendum met the requirements of the Elections Code. The city attorney prepared a staff report, indicating that once a referendum petition is certified, the ordinance is suspended and the city council must reconsider the ordinance, but advised that “a referendum seeking to repeal a zoning amendment which would result in a zoning ordinance that is inconsistent with a general plan is a legally invalid referendum.” The council voted to refuse to repeal the ordinance or to place the issue on the ballot because repeal would result in reversion to APO zoning and create an inconsistency between the zoning and the general plan. The court of appeal held that the referendum was not invalid and the issue must be placed on the ballot. View "Save Lafayette v. City of Lafayette" on Justia Law

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Petitioner, the Attorney General of the State of California, sought a peremptory writ of mandate directing respondent Superior Court of Sacramento Country to vacate its order requiring that he rescind the circulating title and summary he prepared for a proposed 2018 ballot initiative measure to repeal portions of Senate Bill 1, the Road Repair and Accountability Act of 2017, and replace it with the title and summary approved by the court. The court ruled the circulating materials prepared by the Attorney General were confusing, misleading, and likely to create prejudice against the proposed measure. After the Attorney General filed his writ petition with the Court of Appeal court, and initial opposition was filed by the real party in interest Travis Allen, the Court of Appeal issued an order to preserve its jurisdiction, staying the superior court’s ruling and any proceedings thereon, pending further order of the Court of Appeal. Having reviewed the petition and opposition thereto, the Court of Appeal concluded the language prepared by the Attorney General, contrary to the findings of the respondent court, did not mislead the voters or create prejudice against the measure. Consequently, there was no legal or factual basis for respondent court’s interference with the Attorney General’s exercise of his statutory duties. The Court issued the preemptory writ of mandate and continued the stay order pending finality of this decision. View "Becerra v. Super. Ct." on Justia Law

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Petitioner, the Attorney General of the State of California, sought a peremptory writ of mandate directing respondent Superior Court of Sacramento Country to vacate its order requiring that he rescind the circulating title and summary he prepared for a proposed 2018 ballot initiative measure to repeal portions of Senate Bill 1, the Road Repair and Accountability Act of 2017, and replace it with the title and summary approved by the court. The court ruled the circulating materials prepared by the Attorney General were confusing, misleading, and likely to create prejudice against the proposed measure. After the Attorney General filed his writ petition with the Court of Appeal court, and initial opposition was filed by the real party in interest Travis Allen, the Court of Appeal issued an order to preserve its jurisdiction, staying the superior court’s ruling and any proceedings thereon, pending further order of the Court of Appeal. Having reviewed the petition and opposition thereto, the Court of Appeal concluded the language prepared by the Attorney General, contrary to the findings of the respondent court, did not mislead the voters or create prejudice against the measure. Consequently, there was no legal or factual basis for respondent court’s interference with the Attorney General’s exercise of his statutory duties. The Court issued the preemptory writ of mandate and continued the stay order pending finality of this decision. View "Becerra v. Super. Ct." on Justia Law

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The vacant Morgan Hill parcel was designated, in the general plan, as “Industrial” until the city amended the plan to change its designation to “Commercial.” Its zoning was “ML-Light Industrial” before the amendment. Later, the city council changed the parcel’s zoning to “CG-General Commercial,” which would permit a hotel. The Coalition submitted a referendum petition challenging the rezoning to prevent the development of a hotel. The city adopted a certificate of sufficiency as to the referendum, but later “discontinue[d] processing,” believing that the referendum would enact zoning inconsistent with its general plan. The city recognized that it could, alternatively, change the parcel’s zoning to “Highway Commercial” and be consistent with the plan’s designation. Months later, the city called for a special election to submit the referendum to the voters but also authorized the filing of an action to have it removed from the ballot. The court ordered the referendum removed from the ballot and the rezoning certified as effective. The court of appeals reversed, holding that a referendum petition challenging an ordinance that attempts to make the zoning for a parcel consistent with the parcel’s general plan designation is not invalid if the legislative body remains free to select another consistent zoning should the referendum result in the rejection of the legislative body’s first choice of consistent zoning. View "City of Morgan Hill v. Bushey" on Justia Law

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In June 2012 the voters of City of San Diego (City) approved an initiative, the "Citizens Pension Reform Initiative" (hereafter, CPRI), which adopted a charter amendment mandating changes in the pension plan for certain City employees. The Public Employment Relations Board (PERB) determined City was obliged to "meet and confer" pursuant to the provisions of the Meyers-Milias-Brown Act (MMBA) over the CPRI before placing it on the ballot and further determined that, because City violated this purported obligation, PERB could order "make whole" remedies that de facto compelled City to disregard the CPRI. After review, the Court of Appeal concluded that under relevant California law the meet-and-confer obligations under the MMBA had no application when a proposed charter amendment is placed on the ballot by citizen proponents through the initiative process, but instead applied only to proposed charter amendments placed on the ballot by the governing body of a charter city. The Court also concluded that, although it was undisputed that the City's Mayor, Jerry Sanders, and others in City's government provided support to the proponents to develop and campaign for the CPRI, PERB erred when it applied agency principles to transform the CPRI from a citizen-sponsored initiative, for which no meet-and-confer obligations exist, into a governing-body-sponsored ballot proposal within the ambit of "California ex rel. Seal Beach Police Officers Assn. v City of Seal Beach," (36 Cal.3d 591 (1984)). Accordingly, the Court held PERB erred when it concluded City was required to satisfy the concomitant "meet-and-confer" obligations imposed by "Seal Beach" for governing-body-sponsored charter amendment ballot proposals, and therefore PERB erred when it found Sanders and the San Diego City Council committed an unfair labor practice by declining to meet and confer over the CPRI before placing it on the ballot View "Boling v. Public Employment Relations Bd." on Justia Law