nature of proceedings:

(1) MOTION BY PETITIONERS/PLAINTIFFS, CITIZENS FOR JOBS AND THE ECONOMY, CITY OF NEWPORT BEACH, BRUCE NESTANDE, AIRPORT WORKING GROUP OF ORANGE COUNTY AND DAVID ELLIS, FOR SUMMARY JUDGMENT

(2) MOTION BY INTERVENOR, EL TORO REUSE PLANNING AUTHORITY FOR SUMMARY JUDGMENT AGAINST PLAINTIFFS/PETITIONERS

(3) MOTION BY INTERVENOR, EL TORO REUSE PLANNING AUTHORITY FOR SUMMARY JUDGMENT AGAINST DEFENDANT ORANGE COUNTY

(4) MOTION BY INTERVENOR/THIRD PARTY DEFENDANT, JEFFREY METZGER, FOR SUMMARY JUDGMENT AGAINST PLAINTIFFS

(5) MOTION BY INTERVENOR/THIRD PARTY DEFENDANT, JEFFREY METZGER, FOR SUMMARY JUDGMENT AGAINST DEFENDANT COUNTY OF ORANGE

(6) MOTION BY DEFENDANT, COUNTY OF ORANGE FOR SUMMARY JUDGMENT

IN THE MATTERS TAKEN UNDER SUBMISSION, THE COURT NOW RULES AS FOLLOWS:

The motion for summary judgment by petitioners/plaintiffs, Citizens for Jobs and the Economy et. al on its complaint to invalidate Measure F is granted. The motion for summary judgment by the County of Orange on its cross-complaint for declaratory relief as to Section Four of Measure F is granted.

The motions for summary judgment by the El Toro Reuse Planning Authority et. al. and Jeffrey Metzger are denied.

The court finds that the entirety of Measure F is invalid. Also, it finds that the portions relating to airports, jails and hazardous waste landfills, could all be invalidated separately. Although the motions raised numerous issues, this ruling is based only on the reasons that follow. The other issues were not necessary to, or integral to the understanding of, the court’s ruling.

I. BACKGROUND.

In September 1993, the U.S. Defense Base Closure and Realignment Commission recommended the closure of the Marine Corps Air Station ("MCAS") El Toro. The El Toro Reuse Planning Authority ("ETRPA") was formed and designated by the California Legislature to be the single reuse entity for the base. In November 1994, Orange County’s voters adopted Measure A, which amended the County of Orange’s General Plan to require that the base "shall be used for a publicly or privately owned and operated airport." Irvine and Lake Forest, members of the ETRPA, refused to cooperate with conversion of the base into an airport. Orange County withdrew from the ETRPA. The Department of Defense designated the Orange County Board of Supervisors as the Local Redevelopment Agency ("LRA") with respect to the base closure process.

In March 1996, Orange County voters defeated Measure S, which would have repealed Measure A. On December 11, 1996, the LRA adopted by resolution a community reuse plan for a civilian airport.

In March 2000, the Orange County voters adopted Measure F (the Safe and Healthy Communities Initiative), which, among other things, requires a two-thirds vote of the electorate on the approval of airport, jail and hazardous waste landfill projects.

Petitioners/plaintiff, proponents of a civilian airport at the base filed this action to attack the validity of Measure F.

The petition poses the following challenges:

A law is vague if it forbids or requires an action in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. See Los Altos V. Barnes (1992) 3 Cal.App.4th 1193. Unconstitutional portions of a law can be severed if: a) the language is grammatically severable, 2) the language is functionally severable (the remainder must be complete in itself) and c) the initiative would have been enacted by the voters without the severed language. Peop1e v. Stevenson (1962) 58 Cal.2d 794.

Section Three of Measure F states:

"No act by the County of Orange to approve any new or expanded jail, hazardous waste landfill, or civilian airport project shall be valid and effective unless also subsequently ratified by a two-thirds vote of the voters voting at a County General Election."

The phrase "[n]o act . . . to approve" is vague. It is defined by Section Six A of the measure, which states:

"‘Act by the County of Orange to approve" includes, but is not limited to, any legislative action by the Board of Supervisors, in whatever capacity, enacting, adopting, amending, approving, or authorizing any general plan, zoning ordinance, specific plan, development agreement, airport master or master development plan, airport system master plan, management agreement, acquisition or conveyance of land, lease, license, financing decision (including a grant, subsidy, loan, or other form of financial assistance), the formation of any other governmental or quasi-governmental entity, the formation of any non-profit entity, and any other legislative action to permit or facilitate any of the following:"

(1) the design or construction of any new jail, new hazardous waste landfill, or new civilian airport;

(2) the physical expansion of any existing hazardous waste landfill beyond its current legally permissible and authorized boundaries, or an increase in the amount of hazardous waste such a facility may receive above its current legally permissible and authorized limits;

(3) the operation of any existing civilian airport beyond its current legally permissible and authorized level of operations;

(4) the physical expansion of the facilities of any existing civilian airport beyond their current and legally authorized size, where such expansion would permit a level of civilian operations greater than that which is currently permissible and authorized;

(5) an expansion or change in operations at any existing airport, whether military or civilian, that increases the amount or changes the type of civilian, or joint civilian and military, cargo operations;

or

(6) the physical expansion of any existing jail that provides additional beds for persons confined therein; provided, however, that no provision, of this Initiative shall apply to any expansion of an existing jail where the expansion has been approved in a Stipulation and Judgment either by the City in which the jail is located or by each affected City and where the expansion is consistent with the Stipulation and Judgment. For purposes of this Initiative, "each affected City" shall mean each City located within one-half mile of the jail.

"The ratification requirements of Section Three of this Initiative and these definitions govern and are intended to apply only to the extent that the act by the County of Orange to approve is a legislative act that may be subjected to a vote of the People pursuant to Article II, Section 11 of the California Constitution."

In the court’s view, the terms "legislative action" and "legislative act" are vague because they are legal terms of art that would trap the innocent in the absence of interpretation of a particular act by the courts.

Interpretation is case by case. Southwest Diversified, INC., v. Brisbane (1991) 229 Cal.App.3d 1548, 1555 states: ""The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it."" Witkin, Summary 7, Constitutional Law sec. 125 states: "Acts declaring a public purpose and making provision for its accomplishment are legislative acts; acts to carry out legislative policies and purposes already declared by the legislative body are administrative. (Citations.)"

The existence of these legal tests for determining whether an act is legislative or administrative, and the history of litigation in this state over the application of those tests, is prima facie proof that these terms would result in differences among people of common intelligence.

The terms "legislative action" and "legislative act" are not grammatically severable from Section Six A. For example, if "legislative action" were severed, the first sentence would be rendered nonsensical: "‘Act by the County of Orange to approve’" includes, but is not limited to, any [omitted] by the Board of Supervisors, in whatever capacity[.]" Further, even if the sentence made sense, the language would not be functionally severable because this language goes to the very heart of Measure F and the remainder would not be complete. Finally, Measure F would not have been enacted without this language because "[no] act to . . . approve" would have been given an incoherent definition.

The definition of "[n]o act to . . . approve" is vague, so the phrase itself is vague. That phrase is not grammatically severable from Measure F and the voters would not have passed Measure F in its absence. Therefore, the entirety of Measure F is impermissibly vague.

Section Four of Measure F states:

"Funds may be expended by the County of Orange as necessary for the planning of any project listed in Section Three and for the submission of an approved project to the voters for ratification as required herein, but only upon a vote of the Board of Supervisors after public hearing and only to the extent necessary:

a. to define the project;

b. to prepare an environmental impact report or other documentation for the project required by the California Environmental Quality Act, commencing with Section 21000 of the Public Resources Code;

c. for the evaluation and certification of such an environment impact report or documentation;

d. for the hearing or hearings required by Section Five of this Measure and other law, and for approval of the project;

e. for the placement of the approved project thereafter on the ballot of a County General Election for the vote of the People required by this Initiative; and

f. as may otherwise be required by state or federal law. The Board of Supervisors may expend no other funds for any other purposes relating to any such project, until and unless the act by the County to approve the project is ratified by the voters as required by Section Three."

The word "planning" in the phrase "for the planning of any project listed in Section Three" is vague because it could refer to either a legislative or administrative act. This word is not grammatically severable. Section Four is severable. But the rest of Measure F is invalid due to Section Three.

There are other vague portions of Measure F, but they are severable and not material to the invalidation of the entirety of Measure F or to the entirety of Section Four of Measure F.

III. Measure F Violates the Single Subject Rule.

California Constitution, Article II, Section 8(d) states:

"An initiative measure embracing more than one subject may not be submitted to the electors or have any effect."

The provisions of an initiative must be "reasonably germane" to a single subject. An initiative will be upheld if there is a common sense relationship among the various components in furtherance of a common purpose. It will not be upheld if the single subject is excessively general such that it obliterates the rule. An initiative violates the single subject rule if an unlimited array of provisions could be considered germane and joined in the proposition. See Senate of the State of California v. Bill Jones (1999) 21 Cal.4th 1142.

Section One of the measure states: "This Initiative shall be known and may be cited as The Safe and Healthy Communities Initiative."

Section Two states in part: "a. The People of Orange County, not politicians, should make the decisions, by a two-thirds vote, on new or expanded jail hazardous waste landfill, and airport projects since these projects affect the health and safety of our, neighborhoods and communities." Section Two D provides: "We deserve and expect communities that are safe and healthy. This Measure will help keep them that way and protect residents in every part of Orange County."

Respondents assert in their pleading that the single subject is "projects [that] affect the health and safety of" Orange County communities. In the court’s view, however, this subject is so broad that it obliterates the rule. An unlimited array of land use provisions could be considered germane to the health and safety of Orange County communities.

Moreover, there is no common sense relationship between airports, jails and hazardous waste landfills as it relates to health and safety. Each presents completely different health and safety issues. For example, while airports pose noise pollution and traffic congestion problems, jails and hazardous waste landfills do not. There is no unifying health and safety theme among them.

Measure F ia also distinguishable from the initiative in San Mateo County Coastal Landowners’ Ass’n v. County of San Mateo (1995) 38 Cal.App.4th 523.

The projects that affect health and safety in Measure F are defined only by the contents of the initiative. The only way to know the scope of Measure F is to read it and see that it pertains to jails, airports and hazardous waste landfills. Therefore, the contents define the single subject. In contrast, the initiative in San Mateo (entitled the "Coastal Protective Initiative") contained a single subject pertaining to coastal resources, which defined the contents pursuant to a common theme. In San Mateo the court stated: "The provisions of this initiative are ‘reasonably germane’ to one another as they all deal with the planning and regulation of development in the coastal zone in order to protect coastal resources, including agricultural lands, ecologically significant habitats and scenice values[.]"

Section Two of Measure F would make just as much sense if airports, jails and landfills were taken out and sewers, roads and fire stations were substituted. The only real correlation is that they are land use issues. But if the single subject is land use, that is excessively general.

IV. Measure F is Invalid as it Relates to Airports, and Specifically, the El Toro Project.

The court finds that air transportation is a statewide concern. Because Government Code section 26020 permits a "board of supervisors" to "provide and maintain public airports" and because Public Utilities Code section 21661.6(c) permits a board of supervisors to approve a plan to expand or enlarge an existing publicly owned airport after a public hearing, the court concludes that the Legislature delegated exclusive authority to boards of supervisors to provide airports. Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491.

As for the El Toro project:

Any acts in furtherance of the El Toro project are administrative because use as a civilian airport was authorized by Measure A and a community reuse plan was adopted by the Board pursuant to Resolution No. LRA R-96-02 on December 11, 1996. The purpose was declared in Measure A and the Resolution and the means for implementing the purpose were established through a General Plan amendment and through adoption of a community reuse plan.

If the County or its citizens want to prohibit the El Toro project, it has the option of repealing Measure A and Resolution No. LRA R-96-02.

Lincoln Property Co. No. 41 v. Law (1975) 45 Cal.App.3d 230, 234 states: "Under an unbroken line of authorities, administrative or executive acts are not within the reach of the referendum process (citations). The plausible rationale for this rule . . . is that to allow the referendum or initiative to be invoked to annul or delay the executive or administrative conduct would destroy the efficient administration of the business affairs of a city or municipality[.]"

Section One, subsection I of Measure A states in part:

"This initiative amends the Orange County General Plan to provide that certain unincorporated lands within the El Toro MCAS shall be used for a publicly or privately owned and operated airport serving a substantial portion of the County’s passenger and air transportation needs."

Section Two of Measure A states in part:

""Policy PF-4 Airport Land Uses: To the maximum extent feasible consistent with federal and state law, all land uses in the El Toro Airport Planning area shall comply with the following policies: / PF4.l: Civilian Airport Policy. Lands within the El Toro Airport Planning Area shall be used for airport purposes to serve a substantial portion of the County’s air transportation needs, including air carrier transportation of both passengers and cargo."

V. Measure F Interferes with the Board’s Essential Governmental Functions Relating to Jails and Hazardous Waste Landfills.

Simpson v. Hite (1950) 36 Cal.2d 125, 134, states: "The initiative or referendum is not applicable where "the inevitable effect would be greatly to impair or wholly destroy the efficacy of some other governmental power, the practical application of which is essential . . ."

New or expanded jails and hazardous waste landfills are important to protect Orange County citizenry from criminals and to provide for the disposal of hazardous waste. They are essential governmental powers. Although these powers may be subject to restrictions under the initiative process, an initiative cannot be used to greatly impair or wholly destroy those powers.

The procedural mechanism set forth in Measure F for the construction or expansion of jails or hazardous waste landfills requires a vote at an Orange County General Election for every sequential step and expenditure in the process, thus posing procedural obstacles that are either the functional equivalent of a ban on new or expanded jails and on hazardous waste landfills or result in an unreasonably long moratorium on any such projects. As a result, the court finds that Measure F greatly impairs or wholly destroys essential government power.

Citizens Against a New Jail v. Board of Supervisors (1976) 63 Cal.App.3d 559 is distinguishable. The issue in that case was whether the initiative process could be used to require the renovation of an existing jail instead of the construction of a new jail. That initiative only pertained to one particular jail. Such an initiative did not greatly impair or wholly destroy the board of supervisor’s power to provide for new or expanded jails in all situations.

V. Sections Four, Five and Six of Measure F Improperly Implicate Administrative Acts.

Section Four covers funds expended on such acts as defining a project, preparing, evaluating and certifying an environmental impact report, holding a hearing for approval of a project (as opposed to the actual approval), and placing an approved project on the ballot. None of these acts are the equivalent of an ordinance or resolution that both establishes that an airport, jail or hazardous waste landfill be built or expanded and also makes provision for the projects to be completed. Therefore, none of these acts can be deemed legislative.

Section Five states:

"Before any act by the County of Orange to approve any project listed in Section Three, the Board of Supervisors shall hold, with widespread public notice, at least one public hearing in each Orange County City that would be affected by the project. This hearing or hearings shall be held following the preparation, evaluation and certification of the environmental impact report or environmental documentation required for the project."

When a board of supervisors sets the time and date of a meeting, it is acting in an administrative capacity to carry out the legislative purpose in statutes such as Government Code section 25080 (stating that all Board meetings shall be public) and such as Government Code section 54950 et. seq., which requires that local legislative bodies hold regular public meetings and post meeting agendas.

Section Six covers such items as management agreements, which would be administrative. Because all of Measure F is invalid, the court need not enumerate all of the defective provisions.

VI. CONCLUSION.

Suffice it to say that the judiciary should generally not involve itself in the initiative process. However, courts are sometimes compelled to do so when measures such as F are so fundamentally flawed and in violation of the constitution and laws of this state. Should the citizens of the County of Orange not wish to proceed with the building of an airport at the El Toro facility, they can seemingly accomplish this in a variety of ways including the passage of an initiative repealing Measure A.

For the reasons stated herein, petitioners’ and the County of Orange’s motions for summary judgments are granted. The court declares Measure F void and unenforceable. A writ of mandate and permanent injunction is issued enjoining implementation of the measure.

Notice is given by a copy of this minute order faxed to counsel this date as follows and further mailed as follows:

LAURENCE M. WATSON, COUNTY COUNSEL
Marianne Van Riper, Deputy
10 Civic Center Plaza, 4th Floor
Santa Ana, Ca. 92702-1379

Fax (714) 834-2359

Reed & Davidson
Bradley W. Hertz, Esq.
520 S. Grand Ave., Suite 700
Los Angeles, Ca. 90071-2645

Fax (213) 623-1692
 

Strumwasser & Woocher Fredric D. Woocher, Esq. 100 Wilshire Blvd., Suite 1900 Santa Monica Ca. 90401 Fax (310) 319-0156

Remcho, Johansen & Purcell Robin B. Johansen, Esq. 220 Montgomery Street, Suite 800 San Francisco, Ca. 94104 Fax (415) 398-7256

Chevalier, Allen & Lichman
Barbara E. Lichman, Esq.
2603 Main Street, Suite 1000
Irvine, Ca. 92614

Fax (949) 474-6967

Howard, Rice, Nemerovski,
Canady, Falk & Rabkin
Steven L. Mayer, Esq.
Three Embarcadero Center, 7th Floor
San Francisco, Ca. 94111-4065

Fax (415) 217-5910

WD 120100/1-1170111/W8/881750/v1