Despite well-settled limits on California’s constitutional initiative and referendum powers, the courts continue to be faced with ballot measures that test those boundaries.  We wrote about one such case—San Bruno Committee for Economic Justice v. City of San Bruno, 15 Cal.App.5th 524 (2017)—almost two years ago when the First District Court of Appeal rejected a phony special interest group and a hotel and restaurant workers’ union attempt to use the referendum process to thwart a private hotel development that would not employ union workers.  In short, the court in that case agreed that San Bruno’s adoption of a resolution to sell city property to a hotel developer was an administrative act, and thus not a proper subject of a referendum, because it implemented prior legislative actions that established the manner in which the site would be developed.

In the latest example, Gates v. Blakemore, __ Cal.App.5th __ (2019), the Fourth District Court of Appeal affirmed a trial court judgment excusing the county counsel for the County of San Bernardino from the ministerial duty to prepare ballot titles and summaries for six proposed initiatives and thus preventing those measures from appearing on the ballot.  The initiatives addressed a variety of subjects such as pay and benefits for county employees, the structure of the County government, the number of County employees, and the ratio of sheriff patrol officers to citizens served.

The proponents of the initiatives argued that the trial court should not have engaged in any preelection review of the proposed initiatives and that the measures were valid in any event.  For example, according to the proponents, the initiatives do not set any specific number of employees, the duties of those employees, or compensation to be paid, but instead merely set charter policy parameters within which the County will operate.

In a succinct, almost perfunctory opinion, the Court of Appeal disagreed, and characterized the proponents’ argument as “a distinction without a difference.”  The Court thus held that the trial court’s preelection review of the initiatives was proper and that the initiatives were invalid because they would intrude on areas the California Constitution reserves exclusively to the governing body of the County.

As a general rule, it is usually more appropriate to review constitutional and other challenges to initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s “franchise,” but this is true only “in the absence of some clear showing of invalidity.”  A long line of cases have held, however, that preelection review of ballot measures is appropriate where the validity of a proposal is in serious question, and where the matter can be resolved as a matter of law before unnecessary expenditures of time and effort have been placed into a futile election campaign.  Relying on that authority, the Court held that the county counsel properly sought declaratory relief and that the trial court could reach the merits of the validity of the initiatives.

Not only are there serious questions about the initiatives’ validity, according to the Court, they are in fact invalid.  Several of the initiatives exceed the power of the electorate by intruding on budgetary matters that are within the board of supervisors’ exclusive authority.  In addition, several of the initiatives would restructure the County government in ways precluded by the Government Code.  While the local electorate’s right to initiative and referendum is guaranteed by the California Constitution, and “is generally co-extensive with the legislative power of the local governing body,” authority over certain matters is delegated “exclusively to the governing body, thereby precluding initiative and referendum.”

Gates v. Blakemore does not break any new legal ground, but it does provide a valuable reminder that the constitutional rights to initiative and referendum have several important and controlling limits.  Not only do those rights not extend to non-legislative acts such as the adoption or approval of land use permits, they also do not extend to matters exclusively vested in local legislative bodies.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit