California’s Disappearing Referendum Power – A Critique of the Material Change in Circumstances Limitation Created in County of Kern v. Alta Sierra Holistic Exchange Service
1) Executive Summary
Government institutions are supposed to be responsive to the people. At least, in theory, that is how it’s supposed to work. In practice, elected bodies sometimes fail to respond to the needs of their constituents due to financial influence, partisan politics, personal bias, or some other factor. The motivations of fundraising and reelection aren’t always symbiotic with voters’ needs.
In California, direct democracy empowers citizens to fight back against unresponsive institutions at the state and local level.[1] The initiative and referendum powers are direct democracy tools guaranteed to us by the California Constitution. These powers are reserved to the people, meaning the Legislature did not provide them to us.[2] On the contrary, we the people empower the State Legislature to exist, and we reserve our direct democratic rights to ourselves under the California Constitution.
A referendum is a tool to force an ordinance passed by an elected body to a vote of the people.[3] If a board of supervisors passes an ordinance with which voters disagree, voters in that county can prevent the ordinance from taking effect by drafting a referendum petition and gathering signatures.[4] If the referendum petition is validly filed with sufficient signatures, the board of supervisors is prohibited from enacting the ordinance without it first being approved by a vote of the people.
The referendum protects people from having to continually fight against an unresponsive institution bent on imposing its own will against the people’s wishes.[5]
Shortly before the Covid-19 pandemic shut down California, I argued the case of County of Kern v. Alta Sierra Holistic Exchange Service (2020) 46 Cal.App.5th 82 (“ASHES”) before the Fifth District Court of Appeal.[6] The issue in the case was whether a county government can enact an ordinance protested via referendum without first submitting it to the voters.
The court concluded that, despite the unambiguous prohibition in Elections Code 9145, a county government can enact a validly protested ordinance without submitting it to the voters. As long as the county can show there has been a “material change in circumstances,” a county can enact a protested ordinance any time.[7] This new standard limits the people’s referendum power and flies in the face of the constitutional rights of California voters.
2) Election Code Section 9145 Provides Procedures to Facilitate the Exercise of the Referendum In Counties
Under California law, if a legislative body passes a law with which the voters don’t agree, the voters can challenge that law by filing a protest petition. Elections Code section 9145 provides procedures to facilitate the exercise of the referendum power pursuant to Article 2, Section 11 of the California Constitution. Section 9145 requires that, upon receipt of a valid petition, a board of supervisors must (1) entirely repeal the protested ordinance, or (2) submit the protested ordinance to the voters.
If the board does not entirely repeal the ordinance, which includes refraining from taking any action that has practical impact of implementing an essential feature of protested ordinance, then the Board must submit the ordinance to the voters. The ordinance shall not take effect “unless and until a majority of voters voting on the ordinance vote in favor of it.”[8]
3) A Hypothetical to Illustrate How the Referendum Works in Practice
a) Start with an Ordinance passed by the County Board and Challenged by a Local Voter
Imagine the board of supervisors passes an ordinance banning the sale of alcohol in fictitious Cotton County. An opponent of the ban drafts a referendum petition challenging the ordinance, gathers enough signatures from voters in the county to meet the legal threshold, and timely files a referendum petition against the alcohol ban ordinance.
Upon receipt of a valid referendum petition the Cotton County board has two choices: (1) repeal the ban ordinance entirely (the effect of which is to allow alcohol sales), or (2) send the ban ordinance to the voters. The board submits the ordinance to the ballot as a question: “Shall the ordinance banning alcohol in Cotton County take effect?” On election day, county voters overwhelmingly reject the alcohol ban ordinance, with 85% voting “No.”
b) After Repeal by the Board or Rejection by the Voters, the Board Cannot Enact an Ordinance with the Same Essential Features
The Cotton County board believes that the sale of alcohol is detrimental to the community, despite the voters resoundingly voting against the ban. Following the vote rejecting the ban, the board enacts a new “moratorium” on alcohol sales.
This moratorium violates Elections Code 9145 and improperly limits the people’s constitutional referendum power[9], because it implements an essential feature of a validly protested ordinance – a ban on alcohol sales. Even though the moratorium is a new and slightly different ordinance, it shares the same essential features as the protested ban ordinance.
The reason for the prohibition against enacting an ordinance with the same essential features as a protested ordinance is that, without such prohibition, the voters who protested the original ordinance would be forced to (1) invest more time, money and effort in circulating a new protest petition or (2) acquiesce in the board’s legislative agenda.[10] Even if opponents obtain enough valid voter signatures in time to protest the additional action, a board of supervisors could start the process again by repealing the additional action and adopting a slightly modified action that still achieved the essential feature of the protested ordinance.[11] This cycle could continue until the most determined protestors were worn down, thereby effectively nullifying the referendum power of local voters.[12]
4) Legislation Cannot Limit or Restrict the Constitutionally Guaranteed Referendum Power
The referendum power was established in a 1911 amendment to Article 4, Section 1 of the California Constitution. The amendment expressed that the people reserve to themselves power of referendum, adding “...[t]his section is self executing, but legislation may be enacted to facilitate its operation, but in no way limiting or restricting either the provisions of this section or the powers herein reserved.”[13]
The quoted language was deleted in 1966 revisions to the California Constitution, but no substantive change was intended in that amendment.[14] The provision on referendum remains self-executing, and neither the courts nor the legislature can limit or restrict the power.[15]
Accordingly, Elections Code section 9145, authorized by Art. 2, sec 11(a) of the California Constitution to facilitate the exercise of the referendum, may not limit or restrict the referendum.
It was therefore improper for the ASHES court to read in a limitation on the amount of time that the voters are protected against reenactment of a protested ordinance by a county board. It was also improper for the Legislature to add a time limit to Section 9241, which pertains to referendum in cities.[16]
Because of the presumption in favor of the right of referendum, restrictions on the right are not read into the statutes.[17] Statutes regulating the referendum are liberally construed in favor of its broadest exercise.[18]
In ASHES, the trial court invented a time limit, and decided the county could defeat the referendum because a reasonable amount of time had passed. The court of Appeal rejected the “reasonable time” period standard that Kern County sought to implement, but invented another equally harmful standard – a “material change in circumstances” limitation. No such limitation exists in the Elections Code or California Constitution, and imposing such limitation wrongly allows a county board to enact protested ordinance after referendum. It inappropriately interferes with fundamental power of voters to exercise their right to referendum.
5) Incremental Limitations (Disguised as “Protections”) on the Referendum Power Over Time
It is the duty of the courts to jealously guard the people’s right of referendum, and to prevent any action which would improperly annul this right.[19] There are exemptions expressed in Article 2, section 9(a) of the California Constitution: urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State are not subject to referendum. Statutory law mirrors those exemptions.[20] These exemptions are designed to ensure that essential governmental functions are not impaired by the referendum process.[21]
However, the California Supreme Court has held that the presumption in favor of the right of initiative is rebuttable upon a definite indication that the Legislature, as part of the exercise of its power to preempt all local legislation in matters of statewide concern, has intended to restrict that right.[22] The initiative and referendum power cannot be used in areas in which the local legislative body's discretion is largely preempted by statutory mandate.[23]
We are seeing this play out now with new housing laws designed to address a “statewide housing crisis,” which purport to prohibit any local initiative or referendum from challenging approvals of housing projects. The State Legislature has consistently pushed to usurp local control over land use decisions for the last several years, and by declaring housing a statewide emergency, the State Legislature has created an environment where it can override our constitutionally guaranteed right to referendum at the local level with respect to certain land use decisions. A lawsuit challenging SB10, which allows local governments to disregard the provisions of duly-enacted initiative measures that affect planning and land use in local jurisdictions, is currently pending in Los Angeles County Superior Court.[24]
Given what we know about the referendum power – that it is reserved to the people under the California constitution and cannot be limited by the Legislature – it seems clear that unless a constitutional exemption applies, a local board of elected officials cannot enact a protested ordinance without a majority of voters approving it at the ballot box.
However, in 1949, the League of California Cities lobbied the California Legislature to add a time limit on the referendum power as it pertains to cities through Assembly Bill 1684 (Stanley).[25] In its 1949 letter, the League stated: “The courts have indicated that the legislative body may again consider similar ordinance after a ‘reasonable’ period of time.” The lobbyist cited no authority for this assertion.
My research did not reveal any statutory or case law predating the 1949 amendment suggesting that the referendum power was limited only to certain period of time. That is not surprising, given that legislative procedures cannot be used to limit or restrict the referendum under the California Constitution, as explained in Midway and Ortiz.
Assembly Bill 1684 amended Elections Code 1772, now codified at Elections Code 9241, to empower city governments to enact a protested ordinance as early as one year after the repeal or disapproval by voters.[26] While the legislation was cleverly disguised as a protection for voters, it imposed a time limit on voter protection that had not previously existed.
No such time limit exists in the Elections Code pertaining to counties. The League of Cities lobbyist did not request imposition of such limitation for county governments. Section 9145 of the Elections Code provides no limit on the amount of time a Board must refrain from implementing the essential feature of a protested ordinance. Appellants in ASHES contended that the absence of such time limit means that a Board can never implement an essential feature of a protested ordinance without first submitting it to the voters for approval. The court disagreed, and created a new limit not contemplated in the California Constitution: a board of supervisors can reenact a protested ordinance after a material change in circumstances.[27]
Whether the change in circumstances is “material” is determined by considering the effect on the decision-making of an objectively reasonable person. If an objectively reasonable person would consider the new circumstances significant or important in making a decision about the subject matter of the ordinance, the change in circumstances is material.[28]
The new standard leaves California voters in a vulnerable position, and strengthens the ability of county governments to enact protested ordinances with the confidence of knowing voters must fund a lawsuit to challenge their actions. The right to direct democracy is a thorn in the side of many governmental institutions. However, it exists for a reason - to give the people power when governmental institutions are unresponsive - and it is constitutionally guaranteed in this state.
The exact harms that the Court of Appeal warned about in the TCEF decision are made worse by the ASHES decision. The next time an ordinance is challenged by referendum, a county board can simply enact the ordinance and claim a material change in circumstances occurred.
Voters will have to invest more time, money, and effort in circulating a new protest petition or acquiesce in board’s legislative agenda. As a result, I anticipate this issue will arise again in another case that may end up in the California Supreme Court, which should reject this new limitation.
6) Flawed Logic in Creation of a Material Change in Circumstances Standard
The ASHES court provides three reasons for why a material change in circumstances should allow a county government to enact a protested ordinance following a referendum:
A material-change-in-circumstances restriction is compatible with statements made by our Supreme Court.
A material-change-in-circumstances restriction avoids the arbitrariness of a bright-line rule based solely on the passage of time.
A material-change-in-circumstances restriction fulfills our duty to vigilantly protect the referendum power of county voters.
First, the court mischaracterizes the limitation as a “restriction” on the county’s right to reenact a protested ordinance. A county has no right to reenact a protested ordinance under the California Constitution and state law without it being approved by popular vote. The “material change in circumstances” standard is a new limitation on the referendum power of the voters, giving counties the ability to reenact a protested ordinance without sending it to the voters. It is quite the opposite of a restriction on the county’s rights.
Further, what the court calls “entrenchment,” I call “protection of the voters against reenactment of a protested ordinance” – which is what the referendum power provides. There is no inherent limit on the people’s protection – the Constitution and state law clearly require a popular vote to enact a protested ordinance.[29]
a) Deukmejian does not support imposition of a material Change in Circumstances Limitation on Referendum
The ASHES court relies on the Supreme Court case of Assembly of State of Cal. v. Deukmejian in determining a legislative body’s power to reenact legislation after a defeated referendum and focuses on the use of the modifier “recently” before “rejected referendum.” Deukmejian involved a statewide referendum (as opposed to local referendum) led by the California Republican Party and the Republican National Committee against three reapportionment statutes revising the boundaries of the state's Congressional, Senate and Assembly districts to conform to the results of the 1980 federal census.[30]
If signed by the requisite number of electors, the referendum petitions in Deukmejian would require the reapportionment statutes to be placed on the ballot for approval or rejection by the voters and would prevent the statutes from taking effect unless approved by a majority vote.[31] Among other concerns, the impasse facing the California Supreme Court was that the referenda stayed enforcement of reapportionment statutes, but the vote on the referenda was to take place during primary elections for state and federal representatives. The Court had to determine which districts to use for the referendum vote: the protested new plan approved by the Legislature and the Governor or the old districts used in the last decade.[32]
The Court determined use of the previous reapportionment statute would be unconstitutional because the districts violated the one-man, one-vote rule. The Supreme Court concluded the districts to be utilized in primary and general elections would be as set in the challenged reapportionment statutes since federal law forbade use of statewide elections to fill congressional seats. None of these thorny and complex issues were present in the ASHES case.
Nonetheless, the ASHES court concluded the following statement supports a temporal limitation on the referendum power:
“Thus, it has been held that legislative bodies cannot nullify this power by voting to enact a law identical to a recently rejected referendum measure. (See Gilbert v. Ashley (1949) 93 Cal.App.2d 414, 415-416 [209 P.2d 50]; In re Stratham (1920) 45 Cal.App. 436, 439-440 [187 P. 986].)” Assembly of State of Cal. v. Deukmejian (1982) 30 Cal.3d 638, 678. (emphasis added by ASHES).
The Supreme Court did not use “recent” as a standard, and mentioned it in only in dicta to describe the facts specific to those cases. Neither the Gilbert nor Stratham case impose a “recent” standard, or otherwise mention a time limit on how long a legislative body is restrained from reenacting a protested ordinance.
However, the court in ASHES hung their hat on one word: “recently.”
Then, the ASHES court stretched even further. The court explained that the statement “[s]hould the [reapportionment] referenda here be rejected in the primary election, the Legislature will be governed by these rules in fashioning new reapportionment plans for the remainder of this decade” justified their reliance on the word “recent” as a limitation on the referendum power. The court added italics and twisted the Supreme Court’s statement of fact into a new standard of law.
According to ASHES, “[t]he language about the “remainder of this decade” refers to the fact that apportioning areas to voting districts are based on population and the federal census is conducted every decade. The court's statements can be interpreted as implying that the material circumstances relevant to reapportionment would not change until a new federal census was released.” While the first sentence of that quote is true, the second sentence uses circular logic. Yes, there would certainly be a material change in circumstances in ten years when the new census and redistricting occur, but that has nothing to do with the referendum. Redistricting occurs every ten years in accordance with the California Constitution, regardless of any referendum. Even if that change in circumstances had something to do with the referendum, the California Supreme Court made no statement in Deukmejian that could be construed as supporting the ASHES’ court logic on this point.
The Deukmejian case does not support the assertion that there is a limit on the amount of time voters are protected against reenactment of a protested ordinance by a legislative body. The court did not say that the State could reenact the protested legislation after ten years, but that a new census and another redistricting plan would occur in ten years pursuant to Article XXI of the California Constitution. The reenactment of the protested legislation after ten years was not contemplated in Deukmejian.
b) One year is an arbitrary bright line rule
I agree with the court’s conclusion that the one year standard in Elections Code section 9241, which applies only to cities, is arbitrary. One year is an arbitrary bright line standard used to limit the referendum power of voters in the context of city legislation. It was enacted at the behest of the League of California Cities, and has never been challenged since its enactment in 1949.[33] It should be challenged.
Still, this does not support the imposition of a limitation on the amount of time voters are protected against reenactment of a protested ordinance without it first being submitted to a popular vote.
c) A material-change-in-circumstances limitation does not fulfill the duty to vigilantly protect the referendum power of county voters
Contrary to the ASHES court’s opinion, the duty of the courts to vigilantly protect and jealously guard the referendum power was not fulfilled in this case. There was a clear path for the court to vigilantly protect the referendum power: to require that the County (1) place the ban on the ballot and submit it to the voters, (2) entirely repeal and refrain from trying to implement the ban, or (3) pass an ordinance with different essential features to regulate instead of banning cannabis. Instead, the court created a new and unconstitutional limitation on the people’s referendum power.
7) Implications for County Governments and California Voters
As a result of the ASHES decision, county governments can enact ordinances protested by referendum any time, so long as they can cobble together findings supporting a material change in circumstances. This is not good news for Californians.
What will the courts consider new or significant? Using the hypothetical example of Cotton County, is a drunk driving accident new or significant? One might argue it is. Cotton County could reenact the alcohol ban three months after the referendum, arguing that a drunk driving accident within county limits justified the change.
Voters in unincorporated areas will have to work harder to build coalitions and to fund litigation against counties to challenge “material change in circumstances” ordinances after they are enacted.
Voters in cities, however, have been handed an opportunity by the ASHES court to challenge the one year bright line rule enjoyed by city governments pursuant to Elections Code section 9241. The court characterized this limitation as arbitrary in the ASHES decision.[34]
8) Conclusion
Californians have good reason to be concerned about infringement of their constitutional rights, and should take action to ensure they are not further limited. Governor Newsom declared a state of emergency in March 2020, and nearly two years later, Governor Newsom continues to unilaterally extend the state of emergency with no end in sight. Governor Newsom and his public health director Dr. Mark Ghaly proclaimed the California Department of Public Health has the authority to continue issuing lockdown, mask and vaccination orders indefinitely regardless of any state of emergency declaration.[35] Newsom and Democratic legislators have even expressed an interest in revising the recall powers of the people after his embarrassing recall election in September 2021.[36] The recall power is included in the same Article of the California Constitution as the referendum and initiative – these are critical powers reserved to the people, and we need to guard them and protect ourselves from losing complete control over the institutions that we allow to exist.
[1] Direct democracy is not without its faults. California’s initiative and referendum measures are frequently abused.
[2] County of Kern v. Alta Sierra Holistic Exchange Service (2020) 46 Cal.App.5th 82, 93.
[3] The word “referendum” is also used for legislative referrals, which is a ballot question sent to an election by a governing body, such as a city council or county commission. This is confusing, because it is nearly the opposite of a popular vote veto of council-passed legislation. The use of “referendum” in this article refers to the people’s veto of legislation passed by an elected body.
[4] While the Elections Code outlines referendum processes for city, county, and state elections, this article focuses on county elections.
[5] See, County of Kern v. T.C.E.F. Inc. (2016) 246 Cal.App.4th 301, 322.
[6] Video of oral argument is available here: https://www.youtube.com/watch?v=t3NSXuiGQBs
[7] County of Kern v. Alta Sierra Holistic Exchange Service (2020) 46 Cal.App.5th 82, 85.
[8] Elections Code section 9145 (emphasis added).
[9] It also is probably an illegal moratorium.
[10] T.C.E.F., supra, 246 Cal.App.4th at p. 322.
[11] T.C.E.F., supra, 246 Cal.App.4th at p. 322.
[12] T.C.E.F., supra, 246 Cal.App.4th at p. 322.
[13] Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 777.
[14] Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 777.
[15] Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 778.
[16] See, infra Section 5.
[17] DeVita v. County of Napa (1995) 9 Cal.4th 763, 789.
[18] Coalition for Fair Rent v. Abdelnour (1980) 107 Cal. App. 3d 97, 104.
[19] County of Kern v. Alta Sierra Holistic Exchange Service (2020) 46 Cal.App.5th 82, 93, citing DeVita v. County of Napa (1995) 9 Cal.4th 763, 776, 38 Cal.Rptr.2d 699, 889 P.2d 1019.)
[20] See, e.g. Elections Code section 9141, which lists ordinance categories that take effect immediately, and as a result are not subject to referendum.
[21] See, Geiger v. Board of Sup'rs of Butte County (1957) 48 Cal.2d 832, 839.
[22] DeVita v. County of Napa (1995) 9 Cal.4th 763, 776.
[23] DeVita v. County of Napa (1995) 9 Cal.4th 763, 776 (citing Simpson v. Hite, supra, 36 Cal.2d 125, 133–134, 222 P.2d 225 (initiative or referendum power cannot be used to interfere with board of supervisor's duty to provide suitable accommodations for courts); Housing Authority v. Superior Court (1950) 35 Cal.2d 550, 557–558, 219 P.2d 457 (local governing body's contract with local housing authority is an administrative act under state and federal public housing law and therefore not subject to referendum).
[24] Aids Healthcare Foundation v. Bonta et al, Los Angeles County Superior Case No. 21STCP03149, filed September 22, 2021.
[25] April 29, 1949 letter from Richard Carpenter, Legal Counsel to California League of Cities, to Beach Vasey, Legislative Secretary, Governor’s Office.
[26] The court in ASHES declared that this one year bright line is an arbitrary standard and refused to extend it to counties.
[27] County of Kern v. Alta Sierra Holistic Exchange Service (2020) 46 Cal.App.5th 82, 101.
[28] County of Kern v. Alta Sierra Holistic Exchange Service (2020) 46 Cal.App.5th 82, 101.
[29] Section 9241 allows cities to reenact the protested ordinance after the passage of one year, but the ASHES court concludes this standard is arbitrary. It has not been challenged since its enactment in 1949 at the behest of the California League of Cities.
[30] Assembly of State of Cal. v. Deukmejian (1982) 30 Cal.3d 638, 644.
[31] Assembly of State of Cal. v. Deukmejian (1982) 30 Cal.3d 638, 645.
[32] Assembly of State of Cal. v. Deukmejian (1982) 30 Cal.3d 638, 661.
[33] See, supra, Section 5.
[34] County of Kern v. Alta Sierra Holistic Exchange Service (2020) 46 Cal.App.5th 82, 100.
[35] “Why Gavin Newsom extending the COVID state of emergency matters,” Eric Ting, SFGATE, November 17, 2021, available at https://www.sfgate.com/california-politics/article/Gavin-Newsom-COVID-emergency-powers-16625463.php
[36] “Full speed ahead on overhauling California recalls,” Ben Christopher, CalMatters, September 29, 2021, available at https://calmatters.org/politics/2021/09/california-recall-change-law/.
