Saying it would be a "waste of public resources" to put it on the ballot, Ventura County Superior Court Judge Kent Kellegrew has ordered the removal of the ballot measure that would have switched new workers to 401ks off the ballot in that county.
John Arnold's group had contributed $150,000 to this effort, and it was spearheaded by Supervisor Peter Foy, who directs the Koch Brothers "Americans for Prosperity" chapter in California.
CRS was active in this campaign and in the legal challenge spearheaded by Olson, Hagel, & Fishburn.
The order is below:
SUPERIOR COURT OF CALIFORNIA,
MINUTE ORDER
TIME: 01:59:00 PM
JUDICIAL OFFICER PRESIDING: Kent Kellegrew
COUNTY OF VENTURA
VENTURA
DATE: 08/04/2014 DEPT: 43
CLERK: Hellmi McIntyre
CASE NO: 56-2014-00454309-CU-WM-VTA
CASE TITLE: Lacey vs. Mark A. Lunn
Ventura County Clerk Recorder
Registrar of Voters
CASE CATEGORY: Civil - Unlimited
CASE TYPE: Writ of Mandate
EVENT TYPE: Ruling on Submitted Matter
APPEARANCES
The Court, having previously taken the Petition for Writ of Mandate (08/04/2014) under submission, now rules as follows:The Court adopts its tentative as the ruling on the Petition for Writ of Mandate with the following exception. The court acknowledges that the issues raised in this case involve matters of first impression. The Court also acknowledges that the initiative process is a particularly important right of the electorate. The injunction issued in this case shall be stayed for 10 days until August 14, 2014 so thatthe parties can seek appellate review.
Preliminary Statement
Reduced to its most basic components, this case involves the question of whether or not a county, through the initiative process, may withdraw from a statewide system enacted by the Legislature. This court concludes that the initiative process cannot be used for such a process. Instead, counties seeking to withdraw from the County Employee Retirement Law ("CERL") must petition the Legislature.
This Court expresses no opinion as to whether or not it is in the best interest of the voters of the County of Ventura to withdraw from CERL.This Court's analysis begins and ends with an examination as to whether or not withdrawal from CERL can be accomplished by the initiativeprocess.
Petitioner's Evidentiary Objections:
Grau Declaration: Sustain - Hearsay and not relevant to legal issues presented
Thomson Declaration: Sustain - Hearsay and not relevant to legal issues presented.
Real Party in Interest Objections:
Rose Declaration: Sustain as to paragraph 10 - lack of foundation: overrule the remaining objections.
Dean Declaration: Sustain - Lack of foundation.
Lorenzen Declaration: Sustain -Lack of foundation.
Towner Declaration: Overrule
Petitioner's Request for Judicial Notice of items A-R: Grant
Respondent's Request for Judicial Notice of Exhibits A-D: Grant
The Court intends to Grant petitioner's First Amended Petition for Writ of Mandate and issue an injunction barring the subject initiative from appearing on the November 2014 ballot. The County Employees Retirement Act of 1937 (CERL) is a state wide law that becomes operative for counties upon acceptance. It is a comprehensive and complex retirement system that has been amended throughout the years to include different options for participating counties to accept and it has been amended to address concerns specific to participating counties.There is nothing within CERL that provides for withdrawal by a county which has accepted the Retirement Act of 1937. 10 Ops AG 96 (Exhibit M to RJN). (AG opinions are entitled to great weight even though they are not legally binding on the judiciary. Natkin v. CA Unemployment Insur. Appeals BD. (2013) 213 CA 4th 997, 1006-1007.)
"The initiative and referendum are powers reserved by the people and liberally construed in favor of their exercise. [Citations] But the electorate's use of these powers is not unlimited. 'Even under the most liberal interpretation, however, the reserved powers of initiative andreferendum do not encompass all possible actions of a legislative body. Those powers and limited... to the adoption or rejection of "statutes."...' [Citations.] (Marblehead, supra, 226 Cal.App. 3d at p. 1509, 277 Cal.Rptr. 550; see also American Federation of Labor v. EU, supra, 36Cal.3d at p. 708, 206 Cal.Rptr. 89, 686 P2d 609.)"
No provision of CERL permits an individual county to 'opt out' or terminate its participation based on a countywide voter initiative or even a majority or super majority action by a county board of supervisors.
CERL does expressly allow for districts to withdraw from the retirement system and sets forth the procedure for same. Gov. Code 31564, 31564.2.
When the Legislature enacted CERL it permitted individual counties to choose to participate. Participation was not mandatory. Only 20 of California's 58 counties chose to participate in CERL. When Ventura County opted to participate in CERL it agreed to follow the rules established by the Legislature. Exit from CERL is limited to the procedures set forth in Gov. Code 31564, 31564.2 and the exercise of the political process to persuade the Legislature to act.
As a consequence, allowing this measure to be considered on the November ballot would only result in a waste of public resources. If theinitiative was adopted by the voters of Ventura County, the measure could not be implemented.
The Court observes that even if this subject matter could be addressed by the electorate this initiative must be barred from appearing on the November ballot. The initiative violates the single subject requirement imposed by the California Constitution. The subject initiative seeks to: 1) eliminate defined benefit retirement programs and 2) impose a five year salary cap. By including two subjects in the initiative the measure violates the single subject requirement.
Clerk to give notice.
DATE: 08/04/2014 MINUTE ORDER Page 2
DEPT: 43
