By Bridget McDonald
In an opinion published on January 19, 2023, the Second District Court of Appeal in City of Oxnard v. Starr held that the City of Oxnard (City) had standing to sue the proponent of two voter-approved initiatives in an action seeking to have the measures declared void. In so holding, the court denied the proponent’s anti-SLAPP motion, finding that there was no reason why he could not be named as a defendant. The court further upheld the merits of one initative, which established procedures for the conduct of city council meetings, but denied the other, which required the City to maintain its streets to a specified level of repair. [Oxnard v. Starr, ___Cal.App.5th___, Case No. B314601 (2nd Dist. Jan. 19, 2023).]
Factual and Procedural Background
Aaron Starr, a resident of the City of Oxnard, gathered signatures for Measures M and N—two City initiatives that the voters ultimately approved.
Measure M modified the City’s “Sunshine Ordinance,” which largely codified and supplemented the Brown Act. The ordinance provides how the time and place for meetings of the City’s legislative bodies shall be established by resolution; specifies when meeting agendas must be posted; requires policy body meetings to adjourn by 10:00 p.m.; and provides for public comment but does not specify how long each member of the public can speak.
Under Measure M, regular City Council meets would be required to be held on the first and third Tuesday of every month; meetings shall start no earlier than 5:00 p.m. on workdays and no earlier than 9:00 a.m. on weekends; staff presentations to legislative bodies shall be videotaped in advance and posted on the City’s website for viewing at the time the agenda is posted; staff’s primarily role at meetings is to answer questions posed by the legislative body, not reenact pre-recorded meetings; each member of the public shall have no less than 3 minutes to comment on any agenda item or item considered by a legislative committee; Robert’s Rules of Order shall govern the City’s legislative bodies; and the City must use a professional parliamentarian to train members on Robert’s Rules.
Measure N amended Measure O, which was adopted in 2008 to increase sales taxes by 0.5 percent. Measure N amended Measure O’s sunset date from March 31, 2029 to September 30, 2022 to ensure the City spends an adequate amount to maintain the City’s streets and alleys, unless a civil engineer finds otherwise, based on specified conditions. Measure N also stated that, beginning April 1, 2028, the City Council shall have the authority to extend the expiration date by 20 calendar quarters, provided than 110–365 days before each expiration date, a civil engineer finds the Pavement Condition Index of City-owned streets and alleys is at least 80.
At the Trial Court
After the City’s voters passed Measures M and N, the City brought an action against Mr. Starr to have the measures declared void as “administrative” rather than “legislative” in nature. Starr sought dismissal of the suite by responding with an anti-SLAPP motion that claimed the City was not a proper party to bring the action, that he was not a proper defendant, and that the City could not prevail on the merits. The court denied the motion on all three grounds, and further found Measures M and N invalid because they constituted administrate rather than legislative acts.
The Court of Appeal’s Decision
The Sixth Division for the Second District Court of Appeal reversed denial of the anti-SLAPP motion as to Measure M, but affirmed as to Measure N.
Anti-SLAPP Motion
To resolve an anti-SLAPP motion, courts must engage in a two-party inquiry: (1) whether the defendant has established the challenged action is protected activity; and (2) the plaintiff has demonstrated a probability of prevailing on the challenged cause of action.
Under the first prong, the City maintained that its post-election lawsuit does not implicate protected activity. Unpersuaded, the Court of Appeal noted that “there can be no doubt that being a proponent of an initiative is an exercise of a person’s rights of petition and free speech.” The relevant inquiry is determining what the defendant’s activity is that gives rise to the asserted liability and whether that activity is protected. Here, Starr was sued as the proponent of two initiatives—an activity that clearly constitutes protected speech and petitioning.
Under the second prong, the probability of a plaintiff’s success does not necessarily hinge on the merits of the claim, but instead may be based on whether the court has jurisdiction to review the claim. Starr therefore maintained that the City had no power to sue him to invalidate the two initiatives because elected representatives may not use taxpayer funds to enlist the judiciary in an attempt to overturn the will of the electorate. The court countered, cautioning that “the will of the electorate as expressed through the initiative process is not plenary[;] there are limitations,” including prohibiting the City to comply with initiatives that concern administrative matters and are thus invalid.
Here, the City “unequivocally” has standing to challenge the validity of Measures M because it constitutes a “person” who may seek “a declaration of his or her rights or duties with respect to another.” (Code Civ. Proc., § 1060.) Contrary to Starr’s defense, public officials are not required to defend a voter initiative, particularly those they consider to be facially invalid. To this end, Starr is the proper defendant because the City is seeking only declaratory relief regarding Measures M and N—the two initiatives he vigorously and voluntarily defended. Therefore, there is no reason why Starr cannot be named as a defendant, particularly where there is no other logical defendant.
Measures M and N and the Exclusive Delegation Rule
The City maintained that Measure M violated the exclusive delegation rule because Government Code sections 36813 and 54952 establish rules for how the City must conduct its legislative proceedings. The appellate court countered, however, by observing that nowhere does either statute evince the Legislature’s intent to preclude related action by the electorate. To the contrary, the Brown Act specifically provides that the electorate “do not yield their sovereignty to the agencies which service them,” thus indicating the people do have such power.
Moreover, although the Brown Act establishes the floor, rather than a ceiling, for statewide standards for public access to local agency meetings. Thus, standards that allow greater access—such as Measure M’s—are purely a municipal affair. Measure M is therefore not invalid under the exclusive delegation rule.
Measures M and N: Legislative vs. Administrative Acts
The trial court found that Measures M and N were invalid administrative acts because they violated the rule barring the electorate from annulling administrative conduct in a manner that would destroy efficient administrative of the municipality’s business affairs.
An initiative that is administrative in nature is invalid, whereas an initiative that is legislative in nature is not. An initiative is “legislative” if it prescribes a new policy or plan. An initiative is “administrative” if it merely pursues a plan that the legislative body or other superior power already adopted.
The Court of Appeal disagreed with the trial court’s conclusion that Measure M was “administrative” in nature. Instead, the measure could be interpreted as “legislative” because it does not carry out a plan already adopted; rather, it created new reasonable rules for how the City Council must conduct meetings. The Brown Act and state Constitution endorse Measure M’s policies by encouraging public agencies to openly deliberate on any actions it takes in conducting the people’s business. Measure M similarly intends to increase the public’s ability to have information about and participate in the decision made by its public agencies, and is thus permissibly legislative in nature.
Measure N, on the other hand, requires the City to expand general fund monies for road maintenance by setting specific dates and criteria for compliance. If the City fails to comply with Measure N, it will lose Measure O taxes. The manifest purpose of Measure N is to ensure that the City expends Measure O revenue for road repair. To fulfill this purpose, Measure N tells the City how it must administer general tax revenue, even by setting precise dates by which that work must be completed.
For these reasons, the Court of Appeal agreed that Measure N was clearly administrative in nature. Contrary to Starr’s defense, although Measure N says nothing about how the City must spend Measure O tax receipts, its purpose and effect is to do just that. Measure N is tied to Measure O funds and effectively determines how those O funds should be spent based on criteria the voters considered the “proper administration of street maintenance.” That the City may choose not to maintain streets to Measure N’s requisite level and instead let Measure O sunset, as Starr contended, does not make the measure any less administrative. Nor does crafting a properly constructive initiative that could cancel Measure O entirely. The court would not entertain what a measure might or might not have done—Measure N simply attempts to control Measure O funds, not terminate the tax. Therefore, the measure is improperly administrative and thus invalid.\
Conclusion and Implications
The Second District’s opinion provides helpful insight into various pockets of municipal law including voter initiatives, public meeting requirements, and agency standing. Notably, the court reiterated that agencies such as the City can seek declaratory relief of voter initiatives and name the initiatives’ individual proponent as a defendant. The City’s standing ultimately proved fatal to proponent/defendant’s anti-SLAPP motion, which was premised on the defense that the City had no standing at all, and thus had no probability of succeeding on its claims. As to the merits of the contested measures, the court offered a straight forward analysis of what constitutes a “legislative” vs. “administrative” initiative. Simply put, initiatives are permissible so long as they create a new policy or program for the municipality to carry out; but become impermissible if they dictate how the municipality must carry a preexisting program or other administrative affairs.
The Second District’s opinion is available at: https://www.courts.ca.gov/opinions/documents/B314601.PDF
