Modification: City of Oxnard v. Starr

CITY OF OXNARD,

Plaintiff and Respondent,

v.

AARON STARR,

Defendant and Appellant.

2d Civ. No. B314601

(Super. Ct. No. 56-2020-00539039-CU-MC-VTA)

(Ventura County)

California Court of Appeal

Second Appellate District

Division Six

Filed February 17, 2023

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on January 19, 2023, be modified as follows:

1. On page 13, the following sentence before the first full paragraph is deleted: "Measure M is not invalid under the exclusive delegation rule" and the following two sentences are inserted in its place: The City contends that initiatives such as Measure M violate the exclusive delegation rule by interfering with routine operations of government. It claims the Brown Act implicates two competing interests: public access to governmental meetings and a legislative body's authority to control its own proceeding.

2. On page 13, the following paragraphs are inserted after the language in number one, and before the next section labeled: (b) Legislative or Administrative Act:

The Brown Act indisputably promotes public access to governmental meetings. But the City cites no provision of the Brown Act that implicates a local legislative body's interest in controlling its own proceedings as against a citizen's initiative designed to make the proceedings more open to the public. In fact, the entire purpose of the Brown Act is to limit local governmental bodies' control over their proceedings in favor of rules that make government more accessible to the public.

The City's reliance on Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150 is misplaced. There a citizen challenged a rule of a public board limiting each speaker to three minutes on any agenda item. The court upheld the rule against constitutional and statutory challenges. Ribakoff is not applicable because it does not concern rules enacted through the initiative process.

Of course, the rules established by initiative must be reasonable. Although the loss of some efficiency is the price of public participation, the rules enacted by initiative cannot be so burdensome as to substantially impair the function of government. The rules in Measure M are reasonable.

Measure M sets times for meetings that allow working people to attend. It establishes a reasonable minimum of three minutes for each member of the public to speak. (See Ribakoff v. City of Long Beach, supra, 27 Cal.App.5th 150.) It requires that staff presentations of a meeting be recorded and made available, thus allowing members of the public to have advance notice of staff rationale for its recommendations and time to prepare any comments they may have. Finally, we are confident that the City's government will not cease to function if its meetings are subject to the discipline of Robert's Rules.

The City objects to the portion of Measure M that states, "The primary role of staff at meetings is to answer questions posed by the legislative body, not the reenactment of pre-recorded presentations." (Measure M, § 2-1.4.) The City argues the provision limits staff presentations at meetings, leaving the background to prerecorded presentations. The City claims that the result is that people are less informed, not more informed. But the provision speaks of staff's "primary role," not its only role. Nothing in Measure M prohibits full staff presentations at meetings, notwithstanding prerecorded presentations.

3. On pages 15-16, the paragraph beginning with "Finally, Starr points out..." is deleted and the following two paragraphs are inserted in its place:

Finally, Starr points to the California Constitution, article XIII C, section 3, providing, in part, "notwithstanding any other provision of this Constitution . . . the initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge." Starr argues Measure N falls squarely within the ambit of the constitutional provision.

But the purpose of Measure N is not to reduce or repeal a local tax. Its purpose is to direct the expenditure of Measure O taxes. Measure N simply uses the threat of the termination of Measure O taxes as a means of enforcement. Starr cites no authority that the threat of repeal is the equivalent of actual repeal. If the threat of repeal were sufficient, the drafter of every initiative, no matter how administrative in nature, could insulate it from being declared void simply by appending a threat to terminate a tax if its provisions are not followed. This would styme the effective administration of justice.

4. On page 16, in the Disposition, the sentence beginning "The judgment is reversed" is changed to begin "The order denying Starr's anti-SLAPP motion is reversed ...."

This modification does not change the judgment. Appellant Aaron Starr's and respondent City of Oxnard's petitions for rehearing are denied.

Gilbert, P.J.

Yegan, J.

Baltodano, J.