Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIC484325 Mac R. Fisher, Judge. Reversed.
Gerard Ste. Marie, in pro. per., for Plaintiff and Appellant.
Pamela J. Walls, County Counsel, and Bruce G. Fordon, Deputy County Counsel, for Defendant and Respondent.
OPINION
McKinster J.
Gerard Ste. Marie appeals from a stipulated judgment, following denial of his motion for summary judgment, on his petition for writ of mandate challenging the legality of a resolution by the Board of Supervisors of the County of Riverside (hereafter referred to as the County) authorizing the transfer of funds to the proposed new cities of Wildomar and Menifee following their incorporation.
The parties stipulated to entry of judgment to facilitate appellate review of the trial court’s ruling on Ste. Marie’s summary judgment motion. A stipulated judgment following an adverse determination of a critical issue is appealable if the parties intended merely to hasten the transfer of the case from the trial court to the appellate court rather than to settle their dispute fully and finally. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399-402.)
Ste. Marie contends that the resolution constitutes an impermissible gift of public funds in violation of article XVI, section 6 of the state Constitution. He contends that under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (Gov. Code, § 56000 et seq.; hereafter referred to as the Cortese-Knox-Hertzberg Act), the County could provide services directly on behalf of the new cities but cannot contribute funds to assist the cities in providing municipal services. He also contends that because the resolution allocates funds over a 10-year period, it violates a provision of the County Budget Act (§ 29000 et seq.) which limits counties to allocating funds within its budget for the fiscal year in which the expenditure is to be made.
All statutory citations refer to the Government Code unless another code is specified.
We conclude that the resolution contributing funds to the new cities of Wildomar and Menifee is in excess of the County’s authority and consequently that it does constitute an unconstitutional gift of public funds.
BACKGROUND
Under the Cortese-Knox-Hertzberg Act, incorporation of a new city must be approved by the local agency formation commission, or LAFCO, for the county in which the proposed city is located. (§§ 56301, 56325.) Among the purposes of a local agency formation commission is to ensure that an incorporation results in a “similar exchange of both revenue and responsibility for service delivery among the county, the proposed city, and other subject agencies.” (§ 56815, subd. (a).) Consequently, the commission may generally not approve an incorporation if it will have a negative fiscal impact on the county. (§ 56815, subds. (b), (c), (e).) To determine the feasibility of a proposed incorporation, the commission must conduct a comprehensive fiscal analysis, or CFA. (§ 56800.)
In August 2007 and October 2007, respectively, the Riverside County LAFCO (hereafter sometimes the Commission) preliminarily approved proposals to incorporate two new cities, Wildomar and Menifee, from previously unincorporated territory, subject to voter approval. The Commission concluded that each proposed city was expected to receive “revenues sufficient to provide public services and facilities and a reasonable reserve” during the first three fiscal years following incorporation, and that the amount of revenue to be transferred from the County to each city “is substantially equal to the cost of services similarly transferred.” Furthermore, the CFA prepared for each new city indicated that there would be no negative fiscal impact on the County requiring mitigation.
The record shows that incorporation of Wildomar was approved by a majority of voters in the February 5, 2008, election, and was effective July 1, 2008. We take judicial notice that the City of Menifee’s incorporation was effective on October 1, 2008. (CityOfMenifee--Menifee_History [as of June 16, 2010].)
Apparently anticipating LAFCO approval of the proposed incorporations, in July 2007, the County approved a resolution allocating to Wildomar and Menifee the amounts in net savings the County expected to realize during the first 10 years following the incorporations, to be reduced annually “by the amount of sales tax which exceeds the estimated amounts identified in the respective [CFA’s]” for the two cities. It directed the executive office to adjust net county cost allocations consistent with the proposed net savings displayed in the CFA’s for the two cities. The CFA for the proposed city of Wildomar concluded that the County would realize net savings ranging between $237,579 and $309,987 per year for fiscal years 2008/2009 through 2017/2018, and that it would realize net savings ranging between $331,481 and $1,578,149 per year for the same period for the proposed city of Menifee, depending upon the borders finally adopted for Menifee. Although the resolution does not explicitly allocate the funds as contribution toward the cost to the cities of providing municipal services, it appears that that is its purpose: The resolution also amended Board Policy A-46 by adding the following clause, to apply to future proposed incorporations within the County: “Where a Comprehensive Fiscal Analysis (CFA) clearly demonstrates that a proposed incorporation will be revenue-neutral or result in a reduction in net county cost, consideration may be given to negotiating a County contribution to the initial cost of city services.”
Ste. Marie contends that the attachments to the resolution show the actual annual amounts the County would pay to each city. The County agreed, in its separate statement of undisputed facts, that this was undisputed. However, we are not bound by the parties’ understanding of the meaning of the attachments. The meaning of any writing is a question of law, absent extrinsic evidence as to its meaning. (Richeson v. Helal (2007) 158 Cal.App.4th 268, 276.) The attachments unambiguously state the anticipated annual net savings to the County, not amounts to be expended by the County.
On May 14, 2007, Gerard Ste. Marie, a registered voter in Wildomar, sought review of the CFA for the proposed city of Wildomar by the State Controller’s Office. The State Controller’s Office responded, in part, that in its opinion, it is “within the authority of a county board of supervisors to provide financial assistance to any governmental entity within their sphere of influence” and that the Cortese-Knox-Hertzberg Act does not preclude a county from assisting a city within its sphere of influence. Ste. Marie thereafter filed his petition for writ of mandate, seeking an order compelling the County to set aside the resolution, and his motion for summary judgment. The trial court denied the motion, finding that there was no triable issue of material fact and that the County’s resolution did not violate any applicable laws. The parties entered into a stipulated judgment for the purpose of facilitating the appeal, and Ste. Marie filed a timely notice of appeal.
The State Controller’s Office provided no legal authority in support of its opinion.
LEGAL ANALYSIS
STANDARD OF REVIEW
Summary judgment may be granted in favor of a plaintiff if the plaintiff establishes that there is no triable issue of material fact and that he or she is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the grant or denial of summary judgment de novo. (Beckett v. MasterCraft Boat Co. (2005) 126 Cal.App.4th 1045, 1048 [Fourth Dist., Div. Two].) We also determine independently the meaning of a statute. (Ibid.)
ALLOCATION OF COUNTY FUNDS TO ASSIST A NEWLY INCORPORATED CITY IN PROVIDING MUNICIPAL SERVICES VIOLATES THE STATE CONSTITUTION’S BAN ON GIFTS OF PUBLIC FUNDS
We begin with Ste. Marie’s contention that the allocation of funds constituted an illegal gift from the County to the new cities.
Article XVI, section 6 of the California Constitution provides that the Legislature has no authority “to make any gift or authorize the making of any gift, of any public money or thing of value to any... municipal... corporation.” Although it expressly prohibits only the Legislature from making gifts of public funds, that provision and its predecessors have long been held to prohibit contributions of funds from one public agency to another, including a contribution from a county to a general law city, unless the contribution is for a public purpose which benefits the county. (Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630, 637; Auerbach v. Board of Supervisors (1999) 71 Cal.App.4th 1427, 1441.) The Supreme Court has stated the rule as follows: “[A] contribution from one public agency to another for a purely local purpose of the donee agency is in violation of the constitutional prohibition, but... such a contribution is legal if it serves the public purpose of the donor agency even though it is beneficial to local purposes of the donee agency. [Citations.]” (Santa Barbara County Water Agency v. All Persons (1957) 47 Cal.2d 699, 707; see also City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 362, fn. 13.)
“‘It is well settled that the primary question to be considered in determining whether an appropriation of public funds is to be considered a gift is whether the funds are to be used for a public or private purpose. If they are to be used for a public purpose, they are not a gift within the meaning of this constitutional prohibition. [Citation.]’ [Citation.]” (Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 450.) “Importantly, ‘[t]he determination of what constitutes a public purpose is primarily a matter for the Legislature, and its discretion will not be disturbed by the courts so long as that determination has a reasonable basis. [Citations.]’ [Citation.]” (Sturgeon v. County of Los Angeles, supra, 167 Cal.App.4th at pp. 637-638.)
Article XI, section 8, subdivision (a) of the California Constitution states that “[t]he Legislature may provide that counties perform municipal functions at the request of cities within them.” Section 57384 provides that upon the incorporation of a new city from previously unincorporated territory, the county board of supervisors “shall continue to furnish, without additional charge, to the area incorporated all services furnished to the area prior to the incorporation. Those services shall be furnished for the remainder of the fiscal year during which the incorporation became effective or until the city council requests discontinuance of the services, whichever occurs first.” (§ 57384, subd. (a).) The county may also resolve to continue to provide such services beyond the fiscal year during which the incorporation became effective, at the request of the city council. (§ 57834, subd. (c).) Services voluntarily provided pursuant to subdivision (c) are provided “without charge.” (§ 57834, subd. (c).)
Both article XI, section 8 and section 57834 reflect a policy of this state that performance of municipal functions on behalf of a city is a public purpose a county may undertake. Consequently, the performance of such functions by a county on behalf of a city cannot be deemed a gift within the meaning of article XVI, section 6. Accordingly, if a county may contribute funds to enable a newly incorporated city to provide necessary services rather than providing the services on the city’s behalf, doing so does not constitute a gift within the meaning of article XVI, section 6. As we discuss below, however, the Cortese-Knox-Hertzberg Act does not authorize an allocation of funds for that purpose; rather, it authorizes the county only to provide services on behalf of the new city. Consequently, the allocation of funds does violate article XVI, section 6.
Ste. Marie relies on Mallon v. City of Long Beach (1955) 44 Cal.2d 199, City of Ojai v. Chaffee (1943) 60 Cal.App.2d 54 and, implicitly, City of Oakland v. Garrison (1924) 194 Cal. 298, in support of his contention that the allocation of county funds constitutes an illegal gift to the cities. These cases long predate article XI, section 8, subdivision (a) of the California Constitution, which was adopted in 1970 (Historical Notes, 2A West’s Ann. Const. (1996 ed.) foll. Cal. Const., art. XI, section 8, pp. 269-270), and the Cortese-Knox-Hertzberg Act, which was originally enacted in 1985 (Historical and Statutory Notes, 36B West’s Ann. Gov Code (1997 ed.) foll. former § 56000, p. 271). Because those cases do not analyze an allocation of county funds within the context of those provisions, they are not germane to the issue he raises.
THE CORTESE-KNOX-HERTZBERG ACT DOES NOT AUTHORIZE A COUNTY TO PROVIDE FUNDS TO ASSIST A NEWLY INCORPORATED CITY IN PROVIDING MUNICIPAL SERVICES
A county may act only as authorized by the state Constitution or by statute.
A county’s authority is strictly limited to that which is expressly conferred upon it by the state Constitution and the Legislature (Cal. Const., art. XI, § 1; Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal.4th 1143, 1158), together with such other powers as are “necessarily implied from those expressed.” (§ 23003; see Byers v. Board of Supervisors of San Bernardino County (1968) 262 Cal.App.2d 148, 157-158 [Fourth Dist., Div. Two].) Nevertheless, the County appears to take the position that it has the general discretion to subsidize a newly incorporated city in the short term, if it determines that doing so is in the County’s long-term interests: It argues that the contribution of funds is permissible because it is not an unconstitutional gift of county funds. However, the fact that the contribution does not violate the constitutional prohibition on making gifts of public funds does not necessarily mean that the contribution was authorized by the state Constitution or by statute. And, the cases the county relies on do not support the conclusion that so long as its action is in the best interests of its residents, a county has a broad general discretion to act even in the absence of express statutory or constitutional authorization.
The County relies on City of Oakland v. Garrison, supra, 194 Cal. 298. In that case, the court upheld a resolution by the county board of supervisors allocating $5,000 to improve a roadway which was entirely within the City of Oakland. (Id. at pp. 300-304.) The County focuses on the court’s analysis of whether the allocation constituted a gift. It ignores, however, that the allocation was specifically authorized by a statute, which provided that a county board of supervisors “‘may... determine by resolution that the proposed improvement of a street or portion of street within an incorporated city is of general county interest and that county aid should be extended therefor.’” (Id. at p. 301.) If the board determined that the improvement was a matter of general county interest, the statute authorized it to contribute money earmarked for the specific street improvement or otherwise assist the city in performing the necessary improvement. (Id. at pp. 300-301.) The county auditor contended that the statute authorized a gift in violation of the predecessor of article XVI, section 6, and refused to issue a warrant for the funds allocated by the board of supervisors. The court held that the statute did not authorize an unconstitutional gift of county funds because the board of supervisors could reasonably conclude that street improvement, even solely within the limits of an incorporated city, is generally beneficial to the county’s residents. (City of Oakland v. Garrison, at pp. 301-304.) Thus, the issue before the court was not whether the county acted within the scope of some amorphous “general discretion” in determining that improving the roadway would be beneficial to the county’s residents generally. Rather, the issue was whether the statute which specifically authorized the county to determine whether to fund the improvement was unconstitutional.
The opinion identifies the statute only as “Stats. 1923, p. 123.” (City of Oakland v. Garrison, supra, 194 Cal. at p. 300.)
The County also cites Golden Gate Bridge etc. Dist. v. Luehring (1970) 4 Cal.App.3d 204, in which the court stated that both the state and the counties have “extremely broad ‘purposes, ’ affecting in many ways the welfare of their citizens; they are therefore empowered to undertake many kinds of activity in furtherance of the general welfare of their citizens.” (Id. at p. 209.) The purpose of that statement, however, was merely to contrast the breadth of the interests of counties and of the state with the limited interests of a special purpose district, such as the Golden Gate Bridge and Highway District. (Ibid.) The case does not hold that a county may act without statutory authorization, as long as it does so in furtherance of the interests of its residents.
The resolution is not authorized by statute.
The County also contends that its contribution of funds is authorized by three provisions of the Cortese-Knox-Hertzberg Act.
First, the County contends that it is entitled, pursuant to section 56886, to negotiate the terms and conditions of the proposed incorporations. Second, it contends that it is entitled, under the revenue-neutrality provisions of section 56815, to negotiate an “equitable exchange” of revenue and service responsibility when the proposed incorporation results in net savings to the County. Third, it asserts that section 57384 authorizes it to provide “resources” post-incorporation to assist the new cities in providing municipal services.
The first paragraph of section 56886 provides “Any change of organization or reorganization may provide for, or be made subject to one or more of, the following terms and conditions. If a change of organization or reorganization is made subject to one or more of the following terms and conditions in the commission’s resolution making determinations, the terms and conditions imposed shall constitute the exclusive terms and conditions for the change of organization or reorganization, notwithstanding the general provisions of Part 5 (commencing with Section 57300)....” The statute goes on to describe, in paragraphs (a) through (v), numerous terms and conditions which can be made part of the change of organization.
We disagree that these provisions permit the allocation of funds. As we have previously discussed, section 57384 provides that upon the incorporation of a new city from previously unincorporated territory, the county must continue to furnish all services it furnished to the area prior to the incorporation, for the remainder of the fiscal year during which the incorporation became effective or until the city council requests discontinuance of the services. (§ 57384, subd. (a).) The county may resolve to continue to provide such services beyond the fiscal year during which the incorporation became effective, at the request of the city council, without charge to the city. (§ 57834, subd. (c).) By its express terms, the statute authorizes a county to provide municipal services directly; it does not authorize it to contribute funding to assist the city in providing services.
“[W]hen the law does not prescribe the means by which [a] result is to be accomplished, ” a county may use any reasonable and suitable means to accomplish it. (Harris v. Gibbins (1896) 114 Cal. 418, 421, cited in 78 Ops.Cal.Atty.Gen. 171, 180 (1995).) Here, however, the law does prescribe the means by which the result is to be accomplished: It states that a county may agree, upon request of the city council, to continue to furnish services on behalf of the city. (§ 57384, subd. (a).) And, the Legislature has declared that the Cortese-Knox-Hertzberg Act is the “sole and exclusive authority and procedure for the initiation, conduct, and completion of changes of organization and reorganization for cities and districts. All changes of organization and reorganizations shall be initiated, conducted, and completed in accordance with, and as provided” by that act. (§ 56100, italics added.) Accordingly, because the resolution fails to comply with the provisions of the act, it is in excess of the County’s authority.
Because we have determined that the County has no authority to contribute funds to Menifee and Wildomar, we need not address Ste. Marie’s contention that the resolution also violates the County Budget Act.
THE REMEDY
Ste. Marie asks that we reverse the judgment with directions to the trial court to grant his motion for summary judgment or summary adjudication. We disagree that this is the appropriate remedy. A plaintiff may prevail on a motion for summary judgment only upon a showing that he or she is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Here, although we agree that the County’s resolution contributing funds to Wildomar and Menifee is not authorized by law, it does not follow that Ste. Marie is entitled to judgment as a matter of law.
A traditional writ of mandate “may be issued by any court to any inferior... board... to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station....” (Code Civ. Proc., § 1085, subd. (a).) The requirements for issuance of a writ of mandate are a clear, present, usually ministerial duty on the part of the respondent and a clear, present, and beneficial right of the petitioner to the performance of that duty. (Jones v. Omnitrans (2004) 125 Cal.App.4th 273, 278 [Fourth Dist., Div. Two].) As a citizen and a resident of Riverside County, Ste. Marie has a sufficient interest in having the County comply with the Cortese-Knox-Hertzberg Act; he need not show any special interest in the result. (See Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439.) However, his motion for summary judgment or summary adjudication does not address the question whether the County’s board of supervisors has a ministerial duty to repeal the resolution.
“When a writ of mandate is sought with respect to a governmental body, it is essential that the court determine whether the act the writ seeks to compel is a legislative act, involving the exercise of discretion, or purely ministerial. ‘[A] court is without power to interfere with purely legislative action, in the sense that it may not command or prohibit legislative acts[.]... The reason for this is a fundamental one-it would violate the basic constitutional concept of the separation of powers among the three coequal branches of the government.’ [Citations.]” (United Assn. of Journeymen v. City and County of San Francisco (1995) 32 Cal.App.4th 751, 759, italics omitted.) The resolution encompasses not only the contributions to Wildomar and Menifee but also the amendment of Board Policy A-46, which authorizes the County to consider negotiating a contribution to cities which incorporate in the future. The validity of this portion of the resolution is not before us. It is not obvious to us that repealing the resolution because of its partial invalidity is a ministerial act which can be compelled by issuance of a writ of mandate. Certainly, the County is entitled to litigate whether it can be compelled to repeal the resolution or whether it must be allowed to exercise its discretion in determining whether to repeal it or amend it, or whether, on any other basis not determined in this opinion, mandate does not lie. Accordingly, we will reverse the judgment and remand the matter for further proceedings.
DISPOSITION
The judgment is reversed. The cause is remanded for further proceedings consistent with this opinion.
Plaintiff and appellant Gerard Ste. Marie is awarded costs on appeal.
We concur: Hollenhorst Acting P.J., King J.