JOHNSON v. BRADLEY

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Court of Appeal, Second District, Division 3, California.

Ross JOHNSON, et al., Petitioners, v. Tom BRADLEY, et al., Respondents.

No. B051955.

Decided: April 09, 1991

Ross Johnson, Sacramento, Kopp & Di Franco, Quentin L. Kopp, San Francisco, for petitioners. James K. Hahn, City Atty., Anthony Saul Alperin, Asst. City Atty., and Raymond S. Ilgunas, Deputy City Atty., for respondents. Bradley S. Phillips and Mark H. Epstein, Munger, Tolles & Olson, Los Angeles, for amicus curiae Com'n to Draft an Ethics Code for Los Angeles City Government, Geoffrey Cowan, and California Common Cause on behalf of respondents.

In this original mandamus proceeding petitioners Ross Johnson (a member of the California State Assembly), Quentin Kopp (a member of the California State Senate) 1 and Ernani Bernardi (a member of the Los Angeles City Council) (collectively “petitioners”) seek to invalidate and enjoin the implementation and enforcement of those provisions of a campaign reform measure adopted by the voters of the City of Los Angeles which provide for the partial public financing of campaigns for city elective office.   The respondents are the Mayor of the City of Los Angeles, eleven members of the City Council, the City Controller and the City Clerk.2

In June of 1988, the voters of California adopted Proposition 73 which, among other things, precluded the use of public funds to finance any political campaign, whether statewide, legislative or local.   In June of 1990, the voters of the City of Los Angeles adopted a comprehensive campaign, election and ethics reform plan which expressly authorized such use of public monies.

After resolving questions of standing and severability, we discuss the plenary powers of charter cities and conclude, irrespective of County of Sacramento v. Fair Political Practices Com. (1990) 222 Cal.App.3d 687, 271 Cal.Rptr. 802,3 that the decision by the voters of the City of Los Angeles to expend city funds to partially finance political campaigns for city elective offices is a matter of purely local concern and is not invalidated by contrary general state law.   We therefore deny the writ.

FACTUAL AND PROCEDURAL BACKGROUND

On June 5, 1990, the voters of the City of Los Angeles adopted Measure H, which included amendments to the City Charter relating to governmental ethics, election campaign financing and compensation of elected officials.   It had been referred to the voters for their approval or disapproval by the City Council and established a scheme for partial public matching funds and certain conditional campaign expenditure limitations.   The relevant portion of Measure H (section 11, thereof) which is the subject of our consideration is new City Charter Section 313.4

In addition, Measure H also provided for (1) the creation of a City Ethics Commission and a special prosecutor to oversee, administer and enforce the new rules (section 1), (2) limitation on campaign contributions (section 3), (3) limitations on the total amount of contributions that a candidate may accept in any election (section 4), (4) prohibitions on the transfer of contributions between candidates or their controlled committees (section 5), (5) the disclosure of candidates' economic interests and income in the previous twelve months (section 14) and (6) the compensation of elected officials and limitations on outside activities and gifts and honoraria that public officials could accept (section 16).

Petitioners here attack only one portion of Measure H.   They seek to set aside and enjoin the implementation and enforcement of section 313 on the ground that its authorization of the use of public moneys to partially finance election campaigns is prohibited by the provisions of Government Code section 85300 which was enacted by the voters of California when they approved initiative measure Proposition 73 at the statewide primary election of June 7, 1988.5

Petitioners invoke our original jurisdiction (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 731, 248 Cal.Rptr. 115, 755 P.2d 299) by their request for mandamus relief which seeks our consideration of an issue of public importance which should be resolved immediately.  (Cal. Rules of Court, rule 56(a).)   We deemed it appropriate to accept such jurisdiction and to consider and decide the matter (see e.g., Hardie v. Eu (1976) 18 Cal.3d 371, 134 Cal.Rptr. 201, 556 P.2d 301;  Citizens For Jobs & Energy v. Fair Political Practices Com. (1976) 16 Cal.3d 671, 129 Cal.Rptr. 106, 547 P.2d 1386.   On August 9, 1990, we issued an alternative writ and a temporary restraining order enjoining, pending further order, the appropriation or expenditure of any public moneys for the financing of campaigns for elective city office pursuant to Measure H.6

CONTENTIONS OF THE PARTIES

Petitioners contend that (1) Government Code section 85300 prohibits the use of public money for the financing of local as well as state political campaigns 7 and (2) section 313, added to the city charter by Measure H, is therefore invalid and unenforceable.

Respondents, on the other hand, argue in opposition that (1) the petitioners lack standing to sue, (2) the petitioners are not proceeding against proper parties and (3) the City of Los Angeles, as a charter city, may enact laws of local concern which conflict with general state law and the decision to expend city moneys as part of a reform of local political rules is a matter of local, not statewide, concern.

DISCUSSION

We deal first with the threshold procedural questions and then turn to the dispositive substantive issue.

 1. At Least One of the Petitioners Has Standing to Seek the Mandamus Relief Requested.

 Respondents assert that two of the three petitioners (Johnson and Kopp) lack standing to seek mandamus relief.   They argue that under Code of Civil Procedure section 1086, a petitioner must be “beneficially interested” and that requirement “has been generally interpreted to mean one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.  [Citations.]”  (Braude v. City of Los Angeles (1990) 226 Cal.App.3d 83, 87, 276 Cal.Rptr. 256.)   As petitioners Johnson and Kopp are not residents of the City of Los Angeles, and their only apparent interest is their status as the authors and proponents of Proposition 73, respondents contend that their interest is indistinguishable from the public at large.   As to petitioner Bernardi, respondents urge that since he is a member of the City Council he is barred from prosecuting this proceeding under the authority of Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 166 Cal.Rptr. 844, 614 P.2d 276, which concluded that an administrative board member seeking to compel the board on which she sat to comply with a certain regulatory statute was “not a citizen-taxpayer for the purpose of having standing to sue the very board on which she sits.”  (Id. at p. 801, 166 Cal.Rptr. 844, 614 P.2d 276.)

While petitioners Johnson and Kopp respond that an exception to the beneficial interest rule has been recognized where enforcement of an important public right is sought (Green v. Obledo (1981) 29 Cal.3d 126, 144, 172 Cal.Rptr. 206, 624 P.2d 256), we need not address the merits of that argument.   It is sufficient if at least one of the petitioners clearly has standing and it appears to us that petitioner Bernardi does.   Under the terms of the Political Reform Act of 1974, which Proposition 73 amended, any resident of the concerned jurisdiction may sue to enjoin violations or compel compliance.8

This statutory authority is sufficient to overcome the objection that as a member of the City Council, Bernardi can not bring this action.   First, the statute is clear and explicit;  it grants standing to “Any person residing in the jurisdiction.”  (Emphasis added.)   The petitioner Bernardi is admittedly such a person.   Second, in Carsten, the Supreme Court sought to address policy concerns which simply are not presented by this case.   There is no threat here of (1) an undue interference with administrative efficiency or (2) an adverse impact of internecine litigation upon members of an administrative board or its limited budgetary resources.  (Carsten v. Psychology Examining Com., supra, 27 Cal.3d at p. 799, 166 Cal.Rptr. 844, 614 P.2d 276.)   Further, to recognize Bernardi's standing here will not, as in Carsten, permit a dissident board member to simply have a duplicative rerun, in a second, more formal forum, of the disputed issue as to which he was initially unsuccessful in persuading his administrative colleagues.   (Ibid.)  Unlike the petitioner in Carsten, who in effect sought an advisory opinion by means of a mandamus petition, (id. at p. 798, 166 Cal.Rptr. 844, 614 P.2d 276), Bernardi seeks the clarification of an important legal issue which will impact the validity of the central portion of a major campaign reform effort on the part of the City of Los Angeles.

Here, Bernardi seeks to enforce a clear statutory mandate which, as we discuss below, conflicts with a city charter amendment approved by the voters of the City of Los Angeles.  Government Code section 91003, subdivision (a) grants him sufficient standing to prosecute this petition.

 2. Petitioners Have Joined Proper Parties to This Proceeding.

 As we have noted (see fn. 2), the several respondents have been named as individuals rather than in their official capacities.   Respondents raise this as a procedural objection to the petition.   However, it need not detain us long.

First, the respondents are properly identified in the body of the petition.   Second, the relief sought, if granted by this court, would be within the power of respondents to carry out.   Obviously, the Mayor, the City Council members, the City Controller and the City Clerk are the proper officials to whom a court would direct orders invalidating and enjoining expenditure of public funds as well as any other acts found to be violative of general state law.   Finally, there is nothing improper about naming individual officials as parties where it is clear, as it is here, that they are sued in their official rather than individual capacities.  (Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 314–315, 196 P.2d 20.)

Thus, we reject respondents' procedural attacks upon the petition and can now proceed to the substantive objection.   However, before we consider the dispositive issue of whether the use of city funds for public financing of municipal political campaigns is or is not a matter of statewide concern, it is necessary first to determine the present viability of the general state rule.

 3. The Proscription on Public Financing of Political Campaigns Is Severable From the Other Provisions of Proposition 73.

 At the core of petitioners' argument is Government Code section 85300.   Its specific prohibition of the expenditure of public funds for the purpose of seeking elective office provides the sole basis of petitioners' case.   If that section is not valid or enforceable then we need go no further as there would be no general state law to conflict with Measure H.

On September 26, 1990, the United States District Court for the Eastern District of California (Service Employees v. Fair Political Practices (E.D.Cal.1990) 747 F.Supp. 580) held invalid and permanently restrained the enforcement of those portions of Proposition 73 which (1) imposed limitations on political contributions, (2) prohibited candidates from transferring contributions among or between the candidate's own committees and (3) prohibited candidates or elected officials from making contributions to other candidates from their own campaign funds.   Ordinarily, the threshold question which would immediately arise is what effect should be given to this trial court decision which is not yet final (see Taxpayers To Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 771, fn. 13, 274 Cal.Rptr. 787, 799 P.2d 1220).   However, if section 85300 is severable from those portions of Proposition 73, then it does not matter and that issue can safely be ignored.

Section 4 of Proposition 73 provided for the severability of valid provisions from those found to be invalid.9  “ ‘[I]n considering the issue of severability, it must be recognized that the general presumption of constitutionality, fortified by the express statement of a severability clause, normally calls for sustaining any valid portion of a statute unconstitutional in part.’ ”  (Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 330, 118 Cal.Rptr. 637, 530 P.2d 605, quoting from In re Blaney (1947) 30 Cal.2d 643, 655, 184 P.2d 892.)   However, such presumption is subject to three criteria for severability:  “the invalid provision must be grammatically, functionally, and volitionally separable.  [Citations.]”  (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821, 258 Cal.Rptr. 161, 771 P.2d 1247.)

First, severability “is possible and proper where the language of the statute is mechanically severable, that is, where the valid and invalid parts can be separated by paragraph, sentence, clause, phrase, or even single words.  [Citations.]”  (In re Blaney, supra, 30 Cal.2d at p. 655, 184 P.2d 892;  accord Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d at p. 330, 118 Cal.Rptr. 637, 530 P.2d 605.)   This grammatical test is clearly satisfied here.  Section 85300 is a separate and discrete section, albeit a part of Proposition 73's Article 3, which deals with “contribution limitations.”

The second criterion requires a capability of independent application.   That is, does the portion of an enactment to be severed constitute “a completely operative expression of the legislative intent.”  (In re Portnoy (1942) 21 Cal.2d 237, 242, 131 P.2d 1;  accord Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d at p. 331, 118 Cal.Rptr. 637, 530 P.2d 605.)  “The part to be severed must not be part of a partially invalid but unitary whole.   The remaining provisions must stand on their own, unaided by the invalid provisions nor rendered vague by their absence nor inextricably connected to them by policy considerations.   They must be capable of separate enforcement.”  (People's Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 332, 226 Cal.Rptr. 640.)   This functional test is also met here.  Section 85300 is a separate and complete expression of a proscription as to the use of public funds in any election campaign.   Neither its application, interpretation or enforcement depends or relies upon any other language in Proposition 73.   It has an independent application wholly apart from the other provisions of Proposition 73, including specifically those which the federal court in Service Employees International Union found invalid.

The final criterion of volitionality is more subjective.   It rests upon the question as to whether the legislative body would have adopted the severable portion had it foreseen the partial invalidation of the statute.  “This test logically requires that the remaining provisions must be viewed from the perspective of the enacting body.”  (People's Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at p. 332, 226 Cal.Rptr. 640.)

In this case, the enacting body was the electorate itself voting on a statewide initiative.   Thus, we must look at the voter pamphlet materials to see if “the provisions to be severed [were] so presented to the electorate in the initiative that their significance may be seen and independently evaluated in the light of the assigned purposes of the enactment.   The test is whether it can be said with confidence that the electorate's attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions.”   (People's Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at pp. 332–333, 226 Cal.Rptr. 640.)

Although it is true, as Amicus argues, that the proscription on public financing was a significant part of the campaign funding and contribution limitations, it does not follow that the electorate would not have separately approved the ban on public financing.   Indeed, an examination of the voter pamphlet 10 demonstrates that the single most important aspect of Proposition 73 was this proscription.   The voters were repeatedly told, in heavy black type, that Proposition 73 was the alternative to another proposition on the ballot (Proposition 68) which did provide for such public financing.

It appears reasonable to conclude that while both of these propositions imposed substantial political campaign contribution and expenditure reforms, the most critical difference, from the perspective of the voter, was the issue of public financing.   There is a high probability that it was this issue which resulted in the electorate giving the greater majority to Proposition 73, thus defeating the central theme and purpose of Proposition 68.11  If any conclusion can confidently be drawn from the election which resulted in the approval of both of those propositions, but with different majorities, it is that the voters wanted extensive campaign financing reform but that they did not want to do it with public money.   We have no trouble concluding that had the voters known that some of Proposition 73's contribution and money transfer limitations might be held invalid, they nonetheless would have supported the proscription on public financing.

We therefore hold that Government Code section 85300 is severable from the invalid portions of Proposition 73 and is enforceable as an expression of general state law.  (Taxpayers To Limit Campaign Spending v. Fair Pol. Practices Com., supra, 51 Cal.3d at p. 771, fn. 13, 274 Cal.Rptr. 787, 799 P.2d 1220.)

 4. A Charter City's Determination to Provide Its Own Public Funds to Finance Political Campaigns is Not a Matter of Statewide Concern.

 Although we conclude that Government Code section 85300 is valid and enforceable, we can not agree with petitioners that such conclusion requires the mandamus relief which they seek.

“As is made clear in the leading case of Pipoly v. Benson [ (1942) 20 Cal.2d 366, 125 P.2d 482], local governments (whether chartered or not) do not lack the power, nor are they forbidden by the Constitution, to legislate upon matters which are not of a local nature, nor is the Legislature forbidden to legislate with respect to the local municipal affairs of a [chartered] municipality.   Instead, in the event of conflict between the regulations of state and of local governments, or if the state legislation discloses an intent to preempt the field to the exclusion of local regulation, the question becomes one of predominance or superiority as between general state laws on the one hand and the local regulations on the other.  [Citations.]”  (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 62, 81 Cal.Rptr. 465, 460 P.2d 137.)

 Under article XI, section 7 (formerly § 11) of the Constitution, general state laws will prevail over a city's ordinances if those ordinances are in conflict with the general laws.   Conflict exists if an ordinance contradicts or duplicates the general laws or if the intent and purpose of the general laws is to occupy the field of the legislation to the exclusion of municipal regulation.   This “intent to preempt” rule applies even if the subject being regulated is a municipal affair.  (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290–291, 219 Cal.Rptr. 467, 707 P.2d 840;  Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 707–708, 209 Cal.Rptr. 682, 693 P.2d 261.)

 However, “Article XI, section 5, of the California Constitution allows charter cities ․ plenary power in making and enforcing ordinances and regulations with respect to municipal affairs.   Charter city ordinances which govern municipal affairs, if they are adopted pursuant to the city's charter and if they are not proscribed by the state or federal Constitutions, supersede the general laws of the state with which they are inconsistent.  [Citations.]   In matters which are of statewide concern, charter cities like all other cities are subject to the general state laws.  [Citations.]”  (People v. Stone (1987) 190 Cal.App.3d Supp. 1, 9, 236 Cal.Rptr. 140.)   Thus, under article XI, section 5 of the Constitution, a chartered city gains relief with respect to its municipal affairs from the “conflict with general laws” provision in article XI, section 7.  (Bishop v. City of San Jose, supra, 1 Cal.3d at p. 61, 81 Cal.Rptr. 465, 460 P.2d 137.) 12

However, because article XI of the Constitution does not define “municipal affair,” the courts must, under the facts of each case, decide whether the subject matter at issue is a municipal affair or a matter of statewide concern.   While the courts will “give great weight to the purpose of the Legislature in enacting general laws which disclose an intent to preempt the field to the exclusion of local regulation,” the mere fact that the Legislature has indeed attempted to occupy the field will not by itself lead a court to conclude that a subject is a matter of statewide rather than local concern.   (Bishop v. City of San Jose, supra, 1 Cal.3d at p. 63, 81 Cal.Rptr. 465, 460 P.2d 137.)

A recent decision has dealt directly with the issue before us and has concluded that, by their approval of Proposition 73, the voters manifested “a statewide concern with campaign financing which perforce prevails over conflicting local provisions.  [Citation.]”  (County of Sacramento v. Fair Political Practices Com., supra, 222 Cal.App.3d at p. 693, 271 Cal.Rptr. 802, fn. omitted.) 13  In County of Sacramento, the court was presented with an ordinance adopted by the electorate of Sacramento County (a charter county) which provided for the partial public financing of political campaigns for county elective office.   The County petitioned the court for mandamus relief to prevent the Fair Political Practices Commission from enforcing Government Code section 85300.

The court stated that the “issue of campaign financing is not an exclusively local concern.   The evils involved in campaign financing are not unique to Sacramento County nor to any particular election contest.   The escalation of campaign contributions and expenditures is a phenomenon affecting local, statewide and national elections.   Special interest money plays a negative role in elections at all levels of government.  (See, e.g., Buckley v. Valeo (1976) 424 U.S. 1, 78–96 [96 S.Ct. 612, 663–672, 46 L.Ed.2d 659, 721–732].)”  (County of Sacramento v. Fair Political Practices Com., supra, 222 Cal.App.3d at p. 691, 271 Cal.Rptr. 802.)   The court stated that “the integrity of election contests is a long-standing matter of statewide interest.   The Political Reform Act [of 1974 which Proposition 73 amended] reflects statewide concern that both local and state government officials serve the public interest and that election of such officials be free from corruption or undue influence caused by financial interests.  [It] is designed to provide California voters a greater degree of governmental supervision of the political process and to correct election abuses in California.  [Citations.]”  (Id. at pp. 691–692, 271 Cal.Rptr. 802.)

The County of Sacramento court concluded that, “By its terms Proposition 73 applies to local and statewide elections alike and to all sources of contributions.   It is part of a comprehensive scheme of political reform designed to regulate and proscribe a broad variety of activities by candidates, elected and appointed officials, and others.   Proposition 73 is intended to establish a single statewide body of law pertaining to the financing of election campaigns.”  (County of Sacramento v. Fair Political Practices Com., supra, 222 Cal.App.3d at p. 692, 271 Cal.Rptr. 802.)

Whatever may be the vitality of that conclusion with respect to the reforms embodied in the contribution and expenditure limitations imposed on all political candidates, it does not, in our view, resolve the question of whether or not the use of municipal public moneys to finance municipal political campaigns is a matter of statewide concern.   Indeed, in the context of the limited question of whether or not public money should be used for such a purpose, and given our conclusion that the prohibition on such use in section 85300 is severable from the balance of Proposition 73, there is little rationale for the conclusion reached by County of Sacramento.

First, the use of public funds for campaign financing will not, almost by definition, have a corrupting influence.   Whether as specified grants or matching funds it seems obvious that public money reduces rather than increases the fund raising pressures on public office seekers and thereby reduces the undue influence of special interest groups.14  Thus, a prohibition on such use of public money logically has no adverse impact on electoral or governmental integrity.   Secondly, the goals of campaign reform and reduction of election costs, including the reduction of the influence of special interest groups and large contributors, is in no way embarrassed by public financing.   To the contrary, those goals can only be furthered.   Finally, and perhaps most significantly, the authorization or prohibition of the use of public money is really a fiscal question to be decided by the taxpayers who will pay the bill.   It is a fiscal issue relating to the allocation of scarce public resources.   Certainly, that is what the voters were told in the ballot arguments submitted in support of Proposition 73.15

We also note that a review of Proposition 73 does not support County of Sacramento's conclusion that a single statewide body of law was intended.   Under Government Code section 85101 (Article 1 of Proposition 73's amendment to the Political Reform Act of 1974) it was expressly contemplated that local governments could also enact and enforce campaign contribution limitations.16

Thus, we reject the County of Sacramento court's conclusion and respectfully decline to follow it here.   We can think of nothing that is of greater municipal concern than how a city's tax dollars will be spent;  nor anything which would be of less interest to taxpayers in other jurisdictions.   The provisions of Measure H expressly limit the monies to be utilized for campaign financing to city funds.   Thus, payments received by the city from state or federal governmental agencies may not be used.   These are the city taxpayers' own dollars and those taxpayers, together with their city council, have voted to utilize those dollars to help finance political campaigns for city elective offices as a central if not critical part of major political campaign and ethics reform.   That Proposition 73 expressly dealt with this subject and intended that its prohibition extend to campaigns and candidates for local office does not convert the decision of the City of Los Angeles, to follow a different path with its own money, into a matter of statewide concern.

“[T]he fact, standing alone, that the Legislature has attempted to deal with a particular subject on a statewide basis is not determinative of the issue as between state and municipal affairs, nor does it impair the constitutional authority of a home rule city or county to enact and enforce its own regulations to the exclusion of general laws if the subject is held by the courts to be a municipal affair rather than of statewide concern;  stated otherwise, the Legislature is empowered neither to determine what constitutes a municipal affair nor to change such an affair into a matter of statewide concern.”  (Bishop v. City of San Jose, supra, 1 Cal.3d at p. 63, 81 Cal.Rptr. 465, 460 P.2d 137, fn. omitted.) 17

As we have already noted, there is no clear or precise definition of the term “municipal affair.”   It is for the courts to determine on a case by case basis.   Our review of the decisions satisfies us that when the expenditure of municipal tax dollars is the issue, the courts have no trouble concluding that the question is a municipal affair and not a matter of statewide concern.   In City of Pasadena v. Charleville (1932) 215 Cal. 384, 10 P.2d 745 (overruled on other grounds, Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 585–586, 79 Cal.Rptr. 77, 456 P.2d 645) the court held that a charter city was not required to include a prevailing wage clause in a contract for the construction of a wire fence around a city reservoir, since the expenditure in question was a municipal affair that was not subject to the state's prevailing wage law.   Other courts have consistently reached similar conclusions.  (Adams v. Wolff (1948) 84 Cal.App.2d 435, 443–444, 190 P.2d 665 [fixing salaries of employees of charter cities is a municipal affair];  City of Santa Monica v. Grubb (1966) 245 Cal.App.2d 718, 723–727, 54 Cal.Rptr. 210 [city entitled to sell local revenue bonds as authorized by charter without holding election called for under state law];   Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 317, 152 Cal.Rptr. 903, 591 P.2d 1 [determination of wages paid to employees of charter cities and counties is a matter of local concern];   Vial v. City of San Diego (1981) 122 Cal.App.3d 346, 348, 175 Cal.Rptr. 647 [the expenditure of city funds on a public works project that does not involve state or federal laws is not a state concern, is a municipal affair, and is not subject to the state's prevailing wage law];  R & A Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1192, 218 Cal.Rptr. 667 [award of contract for refreshment stands in a city park is a municipal affair that is not controlled by competitive bidding requirements of state law] ).

In cases involving the election of municipal officers, the courts have likewise consistently held that the manner and method of their conduct is a matter of purely local concern.  (Socialist Party v. Uhl (1909) 155 Cal. 776, 788, 103 P. 181 [nomination procedures for municipal officers are not controlled by state primary election statute because “the election of municipal officers is strictly a municipal affair ․ [and] city charters prevail over the general law as far as regulating the method in which a charter election shall be conducted”];  Muehleisen v. Forward (1935) 4 Cal.2d 17, 19, 46 P.2d 969 [the recall of municipal officers “is a municipal affair, which may be governed by the provisions of the charter, and ․ the general law in such cases is superseded”];  City of Redwood City v. Moore, supra, 231 Cal.App.2d 563, 42 Cal.Rptr. 72 [a charter city had the right to limit the vote on the issuance of improvement bonds to landowners, as opposed to qualified electors];  Mackey v. Thiel (1968) 262 Cal.App.2d 362, 68 Cal.Rptr. 717 [a charter city had the power to write and circulate its own voter pamphlets];  Rees v. Layton (1970) 6 Cal.App.3d 815, 86 Cal.Rptr. 268 [a state statute which permitted a candidate's occupation to be printed on the ballot was not binding on charter cities with contrary rules].)

These cases illustrate the point that while there may be no precise or comprehensive definition of the term municipal affair, it at least should include that activity which substantially affects only the particular municipality and has no significant impact upon, or is of any legitimate interest to, the citizens of other jurisdictions.   In our view, the decision of the City of Los Angeles to utilize some of its tax dollars as part of its political campaign and electoral ethics reform legislation is purely a municipal affair and not a matter of statewide concern.   Certainly, the citizens of other jurisdictions could claim no burden from, nor any legitimate interest in, such legislation.   It is therefore not impacted by Government Code section 85300 and is valid and enforceable, at least as against the limited attack made upon it by petitioners herein.18

Therefore, petitioners are not entitled to the relief in mandamus which they seek.   In view of that conclusion, there is no need for us to consider the remaining arguments raised by respondents concerning the impact of invalidation of Section 313 upon the balance of Measure H.

DISPOSITION

The alternative writ is discharged, the peremptory writ of mandamus is denied and the temporary stay, issued on August 9, 1990, is hereby dissolved.

I respectfully dissent.

Campaign financing as embodied in Proposition 73 is a matter of statewide concern preempting the field.   As a consequence Proposition 73 prevails over Measure H of the City of Los Angeles.

Proposition 73 was enacted by the voters of California at the June 1988 General Election to amend the Political Reform Act of 1974.  (Gov.Code, § 81000 et seq.)   Proposition 73 adds section 85300 to the Government Code.  Section 85300 states:  “No public officer shall expend and no candidate shall accept any public moneys for the purpose of seeking elective office.”

On June 5, 1990, the voters of the City of Los Angeles, a charter city, adopted Measure H which, among other things, provides for public financing of campaigns for city office.

The issue presented by this case is whether Proposition 73 or Measure H prevails.

The applicable law has been succinctly stated by the Supreme Court:  “As to matters which are of statewide concern ․ home rule charter cities remain subject to and controlled by applicable general state laws regardless of the provisions of their charters, if it is the intent and purpose of such general laws to occupy the field to the exclusion of municipal regulation (the preemption doctrine).  [Citations.]”  (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 61–62, 81 Cal.Rptr. 465, 460 P.2d 137, cited with approval in City of Santa Clara v. Von Raesfeld (1970) 3 Cal.3d 239, 244–246, 90 Cal.Rptr. 8, 474 P.2d 976.)

The determinative issue is whether the subject matter of Proposition 73 is of “statewide concern.” 1

This issue has been resolved by the Court of Appeal in County of Sacramento v. Fair Political Practices Com. (1990) 222 Cal.App.3d 687, 271 Cal.Rptr. 802.

That opinion, written by Presiding Justice Puglia, establishes that “campaign financing of election contests, both state and local, is a matter of statewide concern ․”  (Id., at p. 690, 271 Cal.Rptr. 802.)

The court stated:  “By its terms Proposition 73 applies to local and statewide elections alike and to all sources of contributions.   It is part of a comprehensive scheme of political reform designed to regulate and proscribe a broad variety of activities by candidates, elected and appointed officials, and others.   Proposition 73 is intended to establish a single statewide body of law pertaining to the financing of election campaigns.”  (Id., at p. 692, 271 Cal.Rptr. 802.)

Campaign financing has been a matter of statewide concern at least from the time of the adoption of The Political Reform Act of 1974.   The legislative findings demonstrate the statewide interest and all encompassing scope of this Act.   Proposition 73 adds to this Act.

The Supreme Court has recently recognized that Proposition 73 is a “comprehensive regulatory scheme” (Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 747, 274 Cal.Rptr. 787, 799 P.2d 1220) and that it regulates political campaign contributions and spending.  (Id., at p. 747, 274 Cal.Rptr. 787, 799 P.2d 1220.)   In addition it acknowledged that Proposition 73 banned public financing.  (Id., at p. 762, 274 Cal.Rptr. 787, 799 P.2d 1220.)

There is no doubt that the voters intended to ban the expenditure and acceptance of public moneys in election campaigns.   This is evident from the language set forth above prohibiting it, from the ballot title, and from the ballot arguments set forth in Appendix B to the majority opinion.

There is no question that Proposition 73 preempts the matter of public finaicing.   Because Measure H is in direct conflict with this ban, there is no need to decide the often difficult question whether such law impliedly preempts the subject matter.

The Supreme Court in Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, at page 291, 219 Cal.Rptr. 467, 707 P.2d 840, sets forth the test:  “The first step in a preemption analysis is to determine whether the local regulation explicitly conflicts with any provision of state law.  [Citation.]”   Where it is in direct conflict it is preempted by state law.  (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 704, 209 Cal.Rptr. 682, 693 P.2d 261.)

In this case because the subject is a matter of statewide concern and because the local regulation is preempted by Proposition 73, Proposition 73 prevails.

The determinative issue is whether campaign financing is a matter of statewide concern.   The majority, however, state that the issue is “whether the subject matter ․ is a municipal affair or a matter of statewide concern.”  (Maj. opn. at p. 887.)   They then consume a lot of time and effort reviewing decisions concerned with municipal matters.   This is a faulty analysis, because as Bishop teaches, if the matter is of statewide concern, the state regulation prevails regardless of whether the matter is a municipal affair and prevails even if the subject would otherwise be a municipal affair.

The majority's view as to the scope of Proposition 73 is set forth by them in some detail while discussing the severability issue.   For example, the majority recognize “․ the proscription on public financing was a significant part of the campaign funding and contribution limitations․”  (Maj. opn. at p. 886.)   The majority recognize the voters' intentions:  “If any conclusion can confidently be drawn from the election which resulted in the approval of both of those propositions [Proposition 68 and Proposition 73], but with different majorities, it is that the voters wanted extensive campaign financing reform but that they did not want to do it with public money.”   (Emphasis added.)  (Maj. opn. at p. 886.)   Finally, the majority conclude:  “We therefore hold that Government Code section 85300 ․ is enforceable as an expression of general state law.”  (Emphasis added.)  (Maj. opn. at p. 886.)

These views should be contrasted with the majority's view of Proposition 73 as stated in the latter half of their opinion which holds that the subject is exclusively a local matter.

The majority rely, in part, on their view that section 85300 is severable from the balance of Proposition 73 to conclude that the petition be denied.  (Maj. opn. at p. 888.)   The fact that the majority find that section 85300 is severable does not add one iota to the determination of whether campaign financing is a matter of statewide concern.   They decided severability solely to avoid deciding the issue of the constitutionality of Proposition 73.   If the majority think severability has any part to play in deciding the issue of statewide concern, they are, in my view, obligated to decide the constitutionality issue.

Furthermore the scope of the ban on public financing cannot be determined in the majority's restrictive niche.   Rather the majority should recognize that section 85300 is an integral part of Proposition 73 and that Proposition 73 is an integral part of the Political Reform Act of 1974.

The fact that the majority conjure up a hypothesis as to the impact of section 85300, does not, in the least, detract from the voters' contrary views, or others' views, regarding its purpose, importance, and how it fits into the scheme of campaign financing.

The respondents and the majority opinion are concerned that Government Code section 851012 (Article 1 of Proposition 73's amendment to the Political Reform Act of 1974) permits local governmental agencies to set lower campaign contribution limits.

They claim that this somehow indicates that Proposition 73 was not intended to preempt the subject matter of campaign contributions.

The complete answer is found in Mervynne v. Acker (1961) 189 Cal.App.2d 558, 11 Cal.Rptr. 340.   A limited delegation to a local legislative body is not an abandonment of the field to local control.   Instead it is an occupation of the field with only a limited delegation to the local legislative body.

Proposition 73 grants an extremely limited delegation to the local legislative body in that local bodies may only impose lower campaign contribution limits.   This limited delegation does not detract from the determination that campaign financing is a matter of statewide concern.

Since Proposition 73 prevails over Measure H as demonstrated above, I would grant petitioners' writ of mandate.

 SEC. 11.  A NEW SECTION 313 IS HEREBY ADDED TO THE CHARTER OF THE CITY OF LOS ANGELES TO READ AS FOLLOWS:

Sec. 313.  Public Matching Funds and Campaign Expenditure Limitations.

 A. Findings and Purposes.

1. Monetary contributions to political campaigns are a legitimate form of participation in the American political process, but the financial strength of certain individuals or organizations should not permit them to exercise a disproportionate or controlling influence on the election of candidates.

2. Therefore, this section is enacted to accomplish the following purposes:

(a) To assist serious candidates in raising enough money to communicate their views and positions adequately to the public without excessive expenditures or contributions, thereby promoting public discussion of the important issues involved in political campaigns.

(b) To limit overall expenditures in campaigns, thereby reducing the pressure on candidates to raise large campaign funds for defensive purposes, beyond the amount necessary to communicate reasonably with voters.

(c) To provide a source of campaign financing in the form of limited public matching funds.

(d) To substantially restrict fund-raising in non-election years.

(e) To increase the value to candidates of smaller contributions.

(f) To reduce the excessive fund-raising advantage of incumbents and thus encourage competition for elective office.

(g) To help restore public trust in governmental and electoral institutions.

 B. Matching Funds and Expenditure Limitations Authorization.

The City shall also adopt by ordinance limitations on campaign expenditures by candidates for elective City office who qualify for and accept public matching funds.   The City shall adopt by ordinance regulations concerning the use of public funds to partially finance campaigns for elective City office through a system of matching public funds for qualifying campaign contributions.   Such ordinances may be amended to further the purposes of this section of the Charter.

 C. Appropriation of Funds.

1. The City Council shall appropriate $2,000,000 per fiscal year for public matching funds, subject to the limitations to Subdivision 2, below.   The Council shall immediately appropriate said funds upon the effective date of this section and shall thereafter appropriate such funds for each following fiscal year.   The amount of such appropriation shall be adjusted for cost of living changes based on the percentage increase or decrease in the Consumer Price Index (for all items other than housing) for the Los Angeles–Long Beach metropolitan statistical area.

2. All such funds shall be appropriated into a trust fund established by the Council by ordinance with interest accruing to the fund.   The amount in the trust fund shall not exceed $8,000,000 in any fiscal year, and the amount otherwise required herein to be appropriated annually to that fund shall be reduced by the amount estimated as necessary to comply with such limitation.   Such amount shall be adjusted for cost of living changes based on the percentage increase or decrease in the Consumer Price Index (for all items other than housing) for the Los Angeles–Long Beach metropolitan statistical area.

3. If there are insufficient funds to provide the maximum matching funds available to a candidate in any election, as specified by ordinance, the limitations on total contributions from persons other than individuals imposed by Section 312 of this Charter shall not apply to any of the candidates for the same office.

4. The funds used to make payments for matching funds shall come exclusively from City sources of revenues.

 D. Interim Funds.

Notwithstanding any other provisions of this Charter, any contributions received for a City campaign subsequent to the operative date of Charter Section 312, as originally adopted, and before July 1, 1991, and which are not expended for costs incurred in a campaign for elective City office conducted prior to July 1, 1991, may only be expended as follows:

1. Returned on a pro rata basis to those who made said contributions.

2. Paid to the City Treasurer for deposit to the General Fund of the City.

3. Donated to one or more charitable organizations qualifying for federal income tax exemption.

This restriction shall not apply to funds held in legal expense funds and officeholder funds, nor to City elections held during 1991.

APPENDIX B

FOOTNOTES

1.   Assemblyman Johnson and Senator Kopp were the principal proponents of the June 7, 1988, ballot measure, Proposition 73, which added a new Chapter 5 (commencing with Gov.Code, § 85100 et seq.) to Title 9 of the Government Code, the Political Reform Act of 1974.

2.   Respondents have been named as individuals in the caption of the petition, but it is clear from the allegations that they are sued in their official capacities.

3.   In County of Sacramento v. Fair Political Practices Com., the Court of Appeal for the Third District, in holding invalid a similar Sacramento County ordinance, concluded that the approval by the voters of Proposition 73 manifested “a statewide concern with campaign financing which perforce prevails over conflicting local provisions.  [Citation.]”  (222 Cal.App.3d at p. 693, 271 Cal.Rptr. 802, fn. omitted.)

4.   Section 313 is set out in its entirety in Appendix A, attached hereto.

5.   Government Code section 85300 provides that “No public officer shall expend and no candidate shall accept any public moneys for the purpose of seeking elective office.”   By its terms, Proposition 73 applies to candidates for local office as well as those running for legislative and statewide office.  (See also, Govt.Code, § 82023 which defines the term “elective office” to include “municipal” officers.)

6.   This matter was originally scheduled to be heard on our October 1990 calendar but was continued until after the November 6, 1990 general election.   A ballot measure (Proposition 131) which was presented to the voters at that time would have repealed Proposition 73 and rendered moot the pending petition.   However, that proposition was defeated and the matter was recalendared.

7.   There is no doubt that section 85300 was intended to apply to all political campaigns and candidates whether local, legislative or statewide.   The critical and dispositive question is whether the use of municipal funds for the financing of municipal elections is a matter of statewide concern so as to bar a charter city from engaging in such a practice contrary to general law.

8.   Government Code section 91003, subdivision (a) provides, in pertinent part:“Any person residing in the jurisdiction may sue for injunctive relief to enjoin violations or to compel compliance with the provisions of this title.”

9.   Section 4 provides:  “If any provision of this act, or the application of any such provision to any person or circumstances, shall be held invalid, the remainder of this act to the extent it can be given effect, or the application of those provisions to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby, and to this end the provisions of this act are severable.”

10.   A copy of the voter pamphlet on Proposition 73 is attached hereto as Appendix B.

11.   Proposition 73 received a 58% affirmative vote while Proposition 68 received 53%.

12.   Article XI, section 5 of the California Constitution provides, in relevant part:“(a) 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.“(b) It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for:  ․ (3) conduct of city elections and (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers ․ shall be elected ․”  (Emphasis added.)

13.   Indeed, the court characterized the proposition as “self-evident.”  (County of Sacramento v. Fair Political Practices Commission, supra, 222 Cal.App.3d at p. 690, 271 Cal.Rptr. 802.)

14.   Indeed, this theme was central to the express findings made by the voters in their enactment of charter section 313 (see Appendix A, part A, “Findings and Purposes”).

15.   As Appendix B will reflect, such ballot arguments included the following statements:“MOST IMPORTANT OF ALL, PROPOSITION 73 ACCOMPLISHES THIS NEEDED REFORM OF CAMPAIGN FINANCING WITHOUT GIVING YOUR HARD–EARNED TAX MONEY TO POLITICIANS.“In fact, it flatly PROHIBITS candidates' use of any tax money in order to campaign for office.“Too much money is spent on political campaigns today!   IT CERTAINLY MAKES NO SENSE TO OPEN THE BIGGEST MONEY SOURCE OF ALL, THE TAXPAYERS' PURSES AND WALLETS.“Keeping government spending under control is hard enough.   Imagine how much harder it will be to keep politicians from spending more tax money on the most important thing in their lives—getting elected and reelected.“TAXPAYER FINANCING OF POLITICAL CAMPAIGNS MAKES NO SENSE!“STATE SENATE AND ASSEMBLY RACES ALONE COULD COST TAXPAYERS $70 MILLION EVERY TWO YEARS.   THIS IS MONEY THAT COULD OTHERWISE PAY FOR POLICE PROTECTION, FIRE PROTECTION OR SCHOOLS.”

16.   Section 85101 provides:“(a) Nothing in this chapter shall affect the validity of a campaign contribution limitation in effect on the operative date of this chapter which was enacted by a local governmental agency and imposes lower contribution limitations.“(b) Nothing in this chapter shall prohibit a local governmental agency from imposing lower campaign contribution limitations for candidates for elective office in its jurisdiction.”See also Government Code section 81009.5 (allowing and limiting the scope of local laws affecting campaign financing) and section 81013 (permitting local agencies to impose additional requirements which do not prevent compliance with the requirements of the Political Reform Act of 1974).

17.   In a footnote, the court disapproved contrary language in In re Hubbard (1964) 62 Cal.2d 119, 127–128, 41 Cal.Rptr. 393, 396 P.2d 809, Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 294, 32 Cal.Rptr. 830, 384 P.2d 158 and City of Redwood City v. Moore (1965) 231 Cal.App.2d 563, 580–581, 42 Cal.Rptr. 72.  “As we have noted, the courts will give great weight to the legislative purpose and may be influenced by the same factors as was the Legislature;  but the view expressed in Moore ․ that the Legislature has ‘the power to change a municipal affair into a matter of statewide concern,’ is disapproved.”   (Bishop v. City of San Jose, supra, 1 Cal.3d at p. 63, fn. 6, 81 Cal.Rptr. 465, 460 P.2d 137.)

18.   We do not consider any other portion of Measure H or any ordinance enacted by the city council to implement it.   We thus do not reach or discuss any issue with respect to the constitutionality of any part of Measure H, or any related ordinance, which limits campaign contributions or expenditures;  nor do we consider whether such provisions might be preempted by any part of Proposition 73.   Our decision should be read as strictly limited to the impact of Government Code 85300 on the expenditure of Los Angeles city funds to finance campaigns for municipal elective office.

1.   In their answer to the petition respondents concede that the integrity of campaign financing and the integrity of elected officials are matters of statewide concern.   They further concede that comprehensive state legislative schemes to accomplish these purposes preempt conflicting local legislation.  (Answer p. 16.)

2.   Section 85101 provides:  “(a) Nothing in this chapter shall affect the validity of a campaign contribution limitation in effect on the operative date of this chapter which was enacted by a local governmental agency and imposes lower contribution limitations.  [¶]  (b) Nothing in this chapter shall prohibit a local governmental agency from imposing lower campaign contribution limitations for candidates for elective office in its jurisdiction.”

CROSKEY, Associate Justice.

KLEIN, P.J., concurs.