Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, David Yaffe, Judge. Los Angeles County Super. Ct. No. BS117634
Lackie, Dammeier & McGill, Dieter C. Dammeier and Russell M. Perry for Plaintiffs and Appellants.
Aleshire & Wynder, Joseph W. Pannone and Douglas P. Haubert for Defendant and Respondent.
TURNER, P. J.
I. INTRODUCTION
Plaintiffs, the Baldwin Park Police Officers Association and Vivian Olivas, appeal from a March 24, 2009 judgment denying their mandate petition. (Code Civ. Proc., § 1085.) We conclude plaintiffs have not met their burden to show error on appeal. Accordingly, we affirm the judgment.
II. BACKGROUND
Plaintiffs filed a mandate petition court on October 29, 2008. Plaintiffs sought to compel the City Council of the City of Baldwin Park to enact a police department employee salary and benefits initiative or to place the measure before the voters on the November 3, 2009 ballot. (Elections Code, § 9215.) The initiative would require the city to: conduct an annual survey of salaries paid and benefits provided to police department employees in 10 enumerated cites; compensate its police department employees at a level not less than the average paid by the surveyed cities; prevent the city from allowing its “budgeted positions” to fall below the level budgeted for in 2004-2005; prohibit the city from contracting out for general police services without prior voter approval; and permit the city to modify compensation and benefits with the Baldwin Park Police Officers Association’s agreement. The trial court found the proposed initiative was invalid because it delegated the power to fix compensation to the enumerated cities in violation of Government Code section 36506 and it impaired the city council’s power and duty to control its budget. The trial court further found the city could not be compelled to enact, or to permit the voters to enact, an invalid measure.
The complete text of the proposed initiative measure is as follows: “We, the undersigned registered voters of the City of Baldwin Park, California, by this petition hereby respectfully request the following ordinance be adopted immediately by the City Council or submitted immediately to a vote of the registered voters of the City of Baldwin Park for their adoption or rejection at a special election: [¶] PRIORITIZING PUBLIC SAFETY [¶] The residents of Baldwin Park declare that City Government’s top priority is to provide the best level of public safety service possible. To better achieve such level of service, upon passage of this measure and thereafter, the City of Baldwin Park shall compensate its police department employees at a level to, at a minimum, ensure that they are compensated equal to the average of other police employees in the San Gabriel Valley. This minimum of salary and benefits shall be determined by surveying the salary and benefits for police employees in Arcadia, Covina, West Covina, Alhambra, San Gabriel, Monrovia, Azusa, Glendora, Irwindale and El Monte and, at a minimum, match the average pay and benefits of these cities. After the initial survey and adjustments, upon passage of this measure, this survey shall be completed each January 15th, with salary and benefit adjustments to be made no later than February 1st of each year. [¶] In providing the above salary and benefits, the rank, job classification, assignment and tenure shall be utilized in comparing to the other police departments. [¶] ‘Salary’ shall be defined as base pay. The bottom step and top step position will be used and Baldwin Park’s pay at those positions will, at a minimum, be adjusted to match the average of the survey. [¶] ‘Benefits’ shall be defined as any economic remuneration provided to more than one half of the survey cities, including, but not limited to medical insurance, education incentives, certificate pay, longevity pay and retirement benefits. The average of each benefit shall then be provided Baldwin Park police employees. [¶] The Baldwin Park Police Department’s budgeted positions shall not fall below the level it was budgeted for in fiscal year 2004-2005, nor shall the City contract out with any entity, public or private, for general police services, without prior voter approval. If prior to passage of this measure, the City contracts out general police services, upon passage of this measure the City’s Police Department shall be reinstated and any police employees that were laid off due to contracting out services shall be immediately reinstated. Nothing in this section shall preclude the City from contracting for specialized police services or entering into mutual aid agreements with other law enforcement agencies. [¶] Nothing in this measure shall limit the obligation of the City of Baldwin Park or the Baldwin Park Police Officers Association from meeting and conferring on terms and conditions of employment as otherwise required by law. The City and Baldwin Park Police Officers Association may, if mutually agreed upon, waive or modify any salary or benefits required by this measure. [¶] If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect the remaining provisions or application thereof, and to this end, the provisions of this measure are severable.”
On October 27, 2008, two days before plaintiffs’ filed their mandate petition, the city filed a declaratory relief action. (City of Baldwin Park v. Bermudez (Super. Ct. L.A. County, No. BC400748.) That action has been stayed pending the outcome of this appeal.
III. DISCUSSION
A. Standard of Review
Code of Civil Procedure section 1085, subdivision (a) provides, “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” Under Code of Civil Procedure section 1086: “The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.” There are two requirements for a writ of mandate to issue. First, there must exist a clear, present and usually ministerial duty upon the part of the defendant. Second, there must exist a clear, present and beneficial right of the plaintiff to the performance of that duty. (City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 925; Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 618.) Mandate may not be used to control a body to exercise discretion in a particular manner. (Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1002; Morris v. Harper (2001) 94 Cal.App.4th 52, 62.) Moreover, it is well-established that mandate does not lie to compel the performance of any act that violates a statute, is illegal, aids an unlawful purpose or is contrary to public policy. (California Highway Commission v. Riley (1923) 192 Cal. 97, 112; Cook v. Noble (1919) 181 Cal. 720, 721; County of San Luis Obispo v. Superior Court (2001) 90 Cal.App.4th 288, 292.) We apply a deferential standard of review determining whether any factual findings are supported by substantial evidence; however, when, as here, the trial court’s decision does not turn on disputed facts, the decision is subject to independent review. (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1032; Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)
B. The Initiative and Referendum Power
The California Constitution, article II, section 11 guarantees the local electorate’s right to initiative and referendum. (DeVita v. County of Napa (1995) 9 Cal.4th 763, 775; Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 776.) The initiative power allows the electorate to propose laws; the referendum power is used to reject enacted laws. (Cal. Const. art. II, §§ 8-9; Rossi v. Brown (1995) 9 Cal.4th 688, 695-696.) Article II, section 11 of the California Constitution states, “Initiative and referendum powers may be exercised by the electors of each city and county under procedures that the Legislature shall provide.” The courts must “‘“jealously guard”’” this right. (DeVita v. County of Napa, supra, 9 Cal.4th at p. 776; accord Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at pp. 776-777.) To that end, it is judicial policy to liberally construe the initiative or referendum power whenever it is challenged. (DeVita v. County of Napa, supra, 9 Cal.4th at p. 776; Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at p. 776.)
The electorate’s initiative and referendum authority is generally coextensive with a local legislative body’s legislative power. (DeVita v. County of Napa, supra, 9 Cal.4th at p. 775; Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22, 26-27.) But administrative or executive powers generally are not subject to initiative and referendum. (DeVita v. County of Napa, supra, 9 Cal.4th at p. 776; Yost v. Thomas (1984) 36 Cal.3d 561, 569-570.) Moreover, a city council’s legislative power is subject to initiative and referendum unless there is a clear showing the Legislature intended otherwise. (DeVita v. County of Napa, supra, 9 Cal.4th at pp. 775-776; Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at p. 777.) The Legislature can preempt initiative power with respect to local legislation in areas of statewide concern. (DeVita v. County of Napa, supra, 9 Cal.4th at p. 776; Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at p. 779.) Our Supreme Court has held: “The presumption in favor of the right of initiative is rebut table upon a definite indication that the Legislature, as part of the exercise of its power to preempt all local legislation in matters of statewide concern, has intended to restrict that right. (See [Voters for Responsible Retirement v. Board of Supervisors], supra, 8 Cal.4th at p. 779; [Committee of Seven Thousand v. Superior Court (1988)] 45 Cal.3d [491,] 511-512.)” (DeVita v. County of Napa, supra, 9 Cal.4th at p. 776.) Local employee compensation and conditions of employment, however, are generally matters of local rather than statewide concern. (Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at pp. 779-780; Kugler v. Yocum (1968) 69 Cal.2d 371, 374).
Government Code section 36506 specifically grants a city council the power and duty to fix city employee compensation. (Mitchell v. Walker (1956) 140 Cal.App.2d 239, 242, disapproved in other respects by Kugler v. Yocum, supra, 69 Cal.2d at p. 379, fn. 6.) Government Code section 36506 states, “By resolution or ordinance, the city council shall fix the compensation of all appointive officers and employees.” Fixing employee compensation is a legislative act. (Bagley v. City of Manhattan Beach, supra, 18 Cal.3d at p. 25; Kugler v. Yocum, supra, 69 Cal.2d at p. 374.) As such, and absent a clear showing of Legislative intent to the contrary, city employee compensation is subject to initiative. (Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at p. 777; Collins v. City & Co. of S.F. (1952) 112 Cal.App.2d 719, 730.) We agree a city council cannot delegate the statutory power and duty to fix employee compensation to an arbitrator or another political subdivision. (Bagley v. City of Manhattan Beach, supra, 18 Cal.3d at pp. 24-27; Mitchell v. Walker, supra, 140 Cal.App.2d at pp. 241-245.) But plaintiffs argue an initiative that sets a minimum salary by reference to that paid by other cities properly legislates a policy of parity without improper delegation of authority. (Kugler v. Yocum, supra, 69 Cal.2d at pp. 373, 377; see Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630, 653.) This is so because as long as the legislative body makes the fundamental policy decision, its implementation by reference to a sufficient standard beyond its control is not an improper delegation of its power. (Kugler v. Yocum, supra, 69 Cal.2d at p. 377; see Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1045.)
But we need not resolve this issue because the proposed initiative does much more than simply enact a parity policy with respect to compensation. The proposed initiative requires: the city to grant certain benefits; prevents the city from allowing its budgeted positions to fall below the 2004-2005 level; prohibits the city from contracting out for general police services without prior voter approval; and allows the city to modify compensation and benefits, but only with the agreement of the Baldwin Park Police Officers Association. Plaintiffs have not discussed these other aspects of the proposed initiative. Plaintiffs have made no effort to show that these additional effects are within the electorate’s initiative power and do not interfere with the city council’s executive or administrative functions. Plaintiffs have not established that these other aspects of the proposed initiative do not improperly interfere with the city council’s budgetary powers. Plaintiffs have not shown that a city’s budget for its public safety agencies does not involve the use of state funds and is not a matter of statewide concern. California Constitution article XIII, section 35, subdivision (a)(1) declares: “Public safety services are critically important to the security and well-being of the State’s citizens and to the growth and revitalization of the State’s economic base.” The Court of Appeal has held, “[The] [i]nvestigation and prosecution of state criminal law are statewide concerns, not municipal affairs.” (Rivero v. Superior Court (1997) 54 Cal.App.4th 1048, 1059; see Totten v. Board of Supervisors (2006) 139 Cal.App.4th 826, 836 [applying the principle to county law enforcement spending].) It is plaintiffs’ burden on appeal to affirmatively establish that the trial court erred. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443; Rossiter v. Benoit (1979) 88 Cal.App.3d706, 712.) Plaintiffs have not met that burden. Finally, the failure to assert error in connection with other portions of the proposed initiative forfeits the issue on appeal. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 70, disapproved on another point in Bailey v. County of Los Angeles (1956) 46 Cal.2d 132, 139.) As a result, we will affirm the judgment.
IV. DISPOSITION
The judgment is affirmed. The City of Baldwin Park is to recover its costs on appeal, jointly and severally, from the Baldwin Park Police Officers Association and Vivian Olivas.
We concur: MOSK, J., KRIEGLER, J.