BAGLEY v. CITY OF MANHATTAN BEACH (1975)

Petitioners sought a writ of mandate to force the City of Manhattan Beach to place their initiative petition on the ballot at the next regularly scheduled municipal election. The court made findings of fact and conclusions of law and entered judgment for the City of Manhattan Beach (City) and other respondents. This appeal follows.

FACTS:

The proposed initiative petition provided:

‘a) It is hereby declared to be the policy of the voters of the City of Manhattan Beach to establish and maintain fair wages, hours, and other terms and conditions of employment for members of the Fire Department which are comparable to similar private and public employment without the potential of later strife, dissension, and strikes. To achieve this objective the voters of the City hereby recognize the value of and adopt the principle of binding arbitration as an equitable alternative to labor strikes as a means to arrive at a fair resolution of terms and conditions of employment when the parties have been unable to resolve these questions through negotiations.

‘b) Pursuant to the public policy herein declared, either the City or the recognized employee organization for the members of the Fire Department may, as the result of an impasse after meeting and conferring in good faith on matters within the scope of representation as required by applicable State law, refer any such matters which are unresolved to binding arbitration under the provisions of this Section; except that the Charter provisions concerning the Fire Retirement System and such other provisions of this Charter which specifically govern wages, hours and other terms and conditions of employment of members of the Fire Department shall not be subject to change by arbitration. In any such arbitration, the arbitrator is directed to take into consideration the City's purpose and policy to create and maintain wages, hours and other terms and conditions of employment which are fair and comparable to similar private and public employment and which are responsive to changing conditions and changing costs and standards of living. The arbitrator shall also consider: the interest and welfare of the public; the availability and sources of funds to defray the cost of any changes in wages, hours and conditions of employment; and all existing benefits and provisions relating to wages, hours and terms and conditions of employment of the members of the Fire Department whether contained in this Charter or elsewhere.

‘c) Any unresolved dispute or controversy arising under the provisions of this Section, or any unresolved dispute or controversy pertaining to the interpretation or application of any negotiated agreement covering uniformed members of the Fire Department shall be submitted to an impartial arbitrator. Representatives assigned by the City and representatives of the recognized employee organization affected by the dispute or controversy shall select the arbitrator. In the event that said parties cannot agree upon the selection of the arbitrator within five days from the date of any impasse, then the California State Conciliation Service shall be requested to nominate five (5) persons, all of whom shall be qualified and experienced as labor arbitrators. If the representatives of the recognized employee organization and the City cannot agree on one of the five to act as arbitrator, they shall strike names from the list of said nominees alternately until the name of one nominee remains who shall thereupon become the arbitrator. The first party to strike a name from the list shall be chosen by lot. Every effort shall be made to secure an award from the impartial arbitrator within thirty (30) calendar days after submission of all issues to him.

‘d) The arbitration proceedings herein provided shall be governed by Sections 1280 et seq., of the California Code of Civil Procedure. The arbitrator's award shall be submitted in writing and shall be final and binding on all parties. The City and the affected employee organization shall take whatever action is necessary to carry out and effectuate the award. The expenses of arbitration, including the fee for the arbitrator's services, shall be borne equally by the parties. All other expenses which the parties may incur individually are to be borne by the party incurring such expenses.

‘e) Nothing herein shall be construed to prevent the parties from submitting controversies or disputes to mediation, factfinding or other reasonable method to finally resolve the dispute should the City and the recognized employee organization in the controversy or dispute so agree. An impasse may be declared by either the City or the recognized employee organization in the event the parties fail to reach agreement on matters within the scope of representation after meeting and conferring in good faith as required by applicable State law, or after other mutually agree-upon settlement methods fail to result in agreement between the parties.’

The trial court found that City exists under the laws of California relating to general law (as opposed to charter) cities. It concluded that (1) the Legislature has by a general statute governing general law cities placed the power and duty to fix the salaries of members of the City's Fire Service in the city council; (2) the proposed initiative is an invalid attempt to delegate the power that belongs exclusively to the city council to an arbitrator, and an arbitrator over whom the City has no control; and (3) there are no safeguards in the proposed initiative adequate to prevent the abuse of the arbitrator's power.

CONTENTIONS ON APPEAL:

Appellants contend:

1. The trial court improperly interfered with the initiative process: The city council had a ministerial duty to place the initiative on the ballot, and a court may not refuse to compel the submission of an initiative petition absent a compelling showing that the initiative's invalidity is clear beyond a doubt.

2. The initiative ordinance provides for a proper delegation of power vested in the city council and is therefore a valid subject of initiative enactment.

Respondents contend:

1. In a general law city the authority to fix compensation of firemen is vested in the city council and cannot be delegated to an arbitrator by the initiative process.

2. The notice required by section 4002 of the Elections Code was not published.

3. The purported initiative petition does not conform to the requirements of Elections Code section 4021.

DISCUSSION:

1. Compliance with sections of the Elections Code regarding notice and the form of the initiative.

a. The notice was proper.

Section 4002 of the Elections Code provides:

‘Before circulating an initiative petition in any city . . . the proponents of such matter shall publish a notice of intention so to do, which notice shall be accompanied by a written statement not in excess of 500 words, setting forth the reasons for the proposed petition. The notice shall be signed by at least one, but not more than five, proponents and shall be in substantially the following form:

‘Notice of Intent to Circulate Petition

‘Notice is hereby given of the intention of the persons whose names appear hereon of their intention to circulate the petition within the City of ........ for the purpose of ...... A statement of the reasons of the proposed action as contemplated in said petition is as follows:’

Respondents contend that the following notice does not comply with section 4002:

‘NOTICE OF INTENT TO STRVE A PETITION IN THE CITY OF MANHATTAN BEACH

‘Notice is hereby given of the intention of the persons whose names appear hereon:

‘Barry Bagley, 128—18th Street, Manhattan Beach, California 90266.

‘Steven Dixon, 117–12th Street, Manhattan Beach, California 90266.

and other residents in Manhattan Beach of their intention to circulate a petition in the City of Manhattan Beach for the purpose of obtaining a special election enabling the voters of Mantan (sic) Beach to accept or reject a ballot issue instructing the City Council of Manhattan Beach to pass an ordinance within sixty (60) days of the date, that such ballot issue is favorably adopted by the voters of Manhattan Beach providing the compulsory and binding arbitration for the employees of the City's Fire Department after an impasse in the Meet and Confer process has been declared by either the employee's representatives or the City's representatives. Inasmuch as it is the intent of the voters of Manhattan Beach to establish a RULE OF LAW process in settling disputes rather than permitting the City's Fire fighters to resort to strikes and other disruptive action.'

Respondents correctly note that the Elections Code does not require the city council to adopt a proposal within 60 days of an election. Rather, sections 4011 and 4012 require the city, after circulation and filing of an adequate petition, to introduce and adopt the ordinance within 10 days after presentation, or call a special election (if signed by 15 percent of the electorate) or submit it at the next regular municipal election (if signed by at least 10 percent of the voters).

However, the requirement in the instant notice is mere surplusage since the ordinance would become valid once adopted by the electorate. (Elec. Code, § 4015.) The substantive part of the notice, describing the reasons for the petition, which is the notice required by section 4002, is accurate. Respondents have raised no defect in the notice that would result in the initiative's not being submitted to the voters.

b. The required enacting clause was not in the initiative; nor did the initiative present an ordinance to the voters.

Section 4021 of the Elections Code provides: ‘The enacting clause of an ordinance submitted to the voters of a city shall be substantially in the following form:

‘The people of the City of ..... do ordain as follows:’

The petition in the instant case does not contain such an enabling clause. While substantial compliance with the requirement would be sufficient (see The Scope of the Initiative and Referendum in California, 54 Cal.L.Rev. 1717, 1743), we cannot find even substantial compliance on the face of the petition. It is not clear that petitioners want to adopt an ordinance; their wording is in terms of a ‘Charter,’ and Manhattan Beach does not have a charter. While a charter can be submitted by the council (Govt.Code, § 34458) and amendments to an existing charter can be submitted by petition (Govt.Code, § 34459), there is no provision for adoption of a charter by petition.

Initiative measures are often liberally construed in order to allow submission to the voters. However, without changing the initiative by reading ‘charter’ as ‘ordinance,’ we could not find it valid. The Elections Code requires submission ‘without change by the legislative body’ and ‘without alteration.’ (§ 4012.) Such alteration would be required to save the initiative petition. The council was correct in not submitting it to the voters.

2. The initiative was invalid under present law since the city council is designated by state statute to fix compensation of employees.

We note at the outset that unless an initiative is patently invalid, a court has no mandatory duty to pass on its validity before submission of the measure to the electorate. (Gayle v. Hamm, 25 Cal.App.3d 250, 255, 101 Cal.Rptr. 628.) The briefs of the parties at trial and on appeal demonstrate that the area is a hazy one; if the procedural requirements had been met, the trial court in this case could have ordered the measure submitted to the voters and delayed determination of its validity until after its passage. However, since the court below based its decision on the invalidity of the subject matter of the initiative, we review that issue.

The substantive issues before the court narrow into the question of whether an initiative petition in a general law city can provide for the delegation of the fixing of wages from the city council to an arbitrator and, if so, whether there are adequate safeguards for reasonable fixing of salaries in the instant petition.

In Kugler v. Yocum, 69 Cal.2d 371, 71 Cla.Rptr. 687, 445 P.2d 303, the California Supreme Court upheld an initiative ordinance in the charter city of Alhambra that established a policy of comparable wage rates with the firemen of Los Angeles City and County. The court held that the resolution of the fundamental issue, policy of parity wages with Los Angeles, was not delegated, and that implementation of that policy did not constitute illegal legislative delegation. It was noted that adequate safeguards were present in that case since the neighboring municipality of Los Angeles had its own reasons for keeping wages at a reasonable level. The court further stated ‘Nor does the fact that a third party, whether private or governmental, performs some role in the application and implementation of an established legislative scheme render the legislation invalid as an unlawful delegation.’ (p. 379, 71 Cal.Rptr. p. 693, 445 P.2d p. 309.) Appellants claim that Kugler is controlling.

Respondents, however, even conceding that wage-setting can be delegated under certain circumstances in a charter law city, contend the general law city is not subject to those rules.¹ Mitchell v. Walker, 140 Cal.App.2d 239, 295 P.2d 90, which was overruled in part by Kugler v. Yocum, supra, 69 Cal.2d 371, 71 Cal.Rptr. 687, 445 P.2d 303, held inter alia that under article IV, section 1 of the California Constitution, the electorate of a municipality does not have the power to initiate legislation that contravenes a general statute passed by the Legislature; the Legislature placed that power and duty in the city council and only the city council. (140 Cal.App.2d 244, 295 P.2d 90.)²

The Legislature in section 36506 of the Government Code has provided ‘By resolution or ordinance, the city council shall fix the compensation of all appointive officers and employees. . . .’ (Emphasis added.) Respondents contend that the initiative in the instant case contravenes that statewide statute and therefore cannot stand. 31 Ops.Atty.Gen. 76 (1958), citing that portion of Mitchell v. Walker, supra, 140 Cal.App.2d 239, 295 P.2d 90, dealing with contravention of the Legislature's designation of power to the city council,³ opined that ‘when the Legislature designates that a particular delegated legislative power is to be exercised by the city's government legislative body (sic)—the ‘city council’—as in Government Code § 36506, then that power is to be exercised by the council only and is withdrawn from the field of local legislation subject to local initiative.'

This view of the limitation on initiatives in general law cities has not been overruled. While Kugler v. Yocum, supra, 69 Cal.2d 371, 71 Cal.Rptr. 687, 445 P.2d 303, apparently allows the city council of even a general law city to delegate the implementation of salary policy so long as there are adequate safeguards, Kugler never states that the citizens of a general law city may themselves make that delegation by initiative. Under section 36506 of the Government Code, that power is given to the ‘city council.’

While Blotter v. Farrell, 42 Cal.2d 804, 270 P.2d 481, is on point⁴ and has never been explicitly overruled, its holding was questioned and implicitly overruled in Geiger v. Board of Supervisors, 48 Cal.2d 832, 838, 313 P.2d 545. The referendum in Geiger concerned reeconsideration of a sales and use tax passed by the Board of Supervisors of Butte County. Revenue and Taxation Code section 7201 provides ‘Any county may by action of its board of supervisors adopt a sales and use tax in accordance with the provisions of this part.’ (Emphasis added.) The court in Geiger held inter alia ‘The fact that the statute not only provides that a county can adopt such a tax, but in addition specifies that this is to be done by action of the board of supervisors, plainly shows that the Legislature intended to limit to boards of supervisors the power to enact such ordinances. (See Barlotti v. Lyons, 182 Cal. 575, 577–584, 189 P. 282 . . .; but cf. Blotter v. Farrell, 42 Cal.2d 804, 811–812, 270 P.2d 481 . . .)’ Mitchell v. Walker, supra, 140 Cal.App.2d 239, 295 P.2d 90; Myers v. City Council of Pismo Beach, 241 Cal.App.2d 237, 244, 50 Cal.Rptr. 402; Bayless v. Limber, 26 Cal.App.3d 463, 469, 102 Cal.Rptr. 647, and other cases support this interpretation as applied to general law cities. The trial court was therefore correct in finding the initiative invalid.

The judgment is affirmed.

FOOTNOTES

1.  Under Kugler, the city council of a general law city may pass such an ordinance. The question here is whether the people can do so through an initiative. (See The Scope of the Initiative and Referendum in California, 54 Cal.L.Rev. 1717, 1733.)

2.  Mitchell v. Walker, supra, 140 Cal.App.2d 239, 295 P.2d 90, also held that a city council could not delegate the fixing of salaries (by establishing a parity wage scale with that of the Los Angeles County Sheriff's Office and Fire Department). Since the city council could not do it by ordinance, Mitchell held the ordinance could not be adopted by initiative. Mitchell v. Walker, supra, was overruled in the part of Kugler v. Yocum, supra, 69 Cal.2d at pp. 379–380, n. 6, 71 Cal.Rptr. 687, 445 P.2d 303, deciding that the legislative body has the power to base compensation for the involved employees upon comparable prevailing wages.Fire Fighters Union v. City of Vallejo, 12 Cal.3d 608, 613, 526 P.2d 971, discussed the validity of a binding arbitration provision without ever discussing the validity of its adoption by the process of referendum rather than by the city council of Vallejo. It should be noted, however, that Vallejo, like Alhambra, is a charter city. Fire Fighters Union, supra, like Kugler, supra, does not confront the issue of the differing limits of initiative petitions in charter and general law cities.

3.  The opinion did not discuss the issue of whether the city council by itself could validly enact an ordinance providing that salaries be fixed in accordance with a cost of living index published in the county. That is the issue to which Kugler v. Yocum, supra, 69 Cal.2d 371, 71 Cal.Rptr. 687, 445 P.2d 303, is addressed.

4.  Blotter v. Farrell, supra, 42 Cal.2d 804, 270 P.2d 481, allowed the electors of a general law city to propose an initiative concerning redistricting, a subject purportedly covered by state law. Government Code section 35322 provided ‘Where a territory is annexed to a city divided into wards, or to a city which later divides itself into wards, the legislative body, by ordinance, shall alter the boundaries of the city wards to include the annexed territory in one or more wards adjoining the territory, or make one or more additional wards out of the annexed territory.’ (Emphasis added.) Nevertheless, the Supreme Court in Blotter (which has never been explicitly overruled and which has been cited recently, though for other propositions) allowed an initiative on the subject.

BEACH, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.