BOLING v. PUBLIC EMPLOYMENT RELATIONS BOARD

Petitioners’ Response to Amicus Curiae Brief

Cal.January 30, 2018

Case No. 8242034 SUPREME COURT FILEDIN THE CALIFORNIA SUPREME COURT 5 204 CATHERINEA. BOLING;T. J. ZANE AND STEPHENB. JAN 30 WILLIAMS Jorge Navarrete Clerk Petitioners, Vv. Deputy CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD Respondent. CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION; DEPUTY CITY ATTORNEYS ASSOCIATION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127 AND SAN DIEGO CITY FIREFIGHTERS LOCAL 145 Real Parties in Interest. PETITIONERS’ CONSOLIDATED ANSWER TO AMICUSBRIEFS FILED IN SUPPORT OF UNION REAL PARTIES IN INTEREST AND RESPONDENTBY INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL EMPLOYEESLOCAL21, OPERATING ENGINEERS LOCAL UNIONNO. 3, AND MARIN ASSOCIATION OF PUBLIC EMPLOYEES; THE INTERNATIONAL ASSOCIATIONOF FIRE FIGHTERS; SAN DIEGO POLICE OFFICERS ASSOCIATION; SERVICE EMPLOYEES INTERNATIONAL UNION, CALIFORNIA STATE COUNCIL; AND ORANGE COUNTY ATTORNEYS ASSOCIATION Petition For Review and/or Disposition to Court ofAppeal to Hear Motion at the Court of Appeal From Public Employment Relations Board Decision No. 2464-M. (Case Nos. LA-CE-746-M; LA-CE-752-M; LA-CE-755-M; and LA-CE-758-M) Lounsbery Ferguson Altona & Peak, LLP Kenneth H. Lounsbery/ SBN 38055 James P. Lough/ SBN 91198 *Alena Shamos/ SBN 216548 Phone: (760) 743-1201; Fax: (760) 743-9926 Attorneys for Petitioners, Catherine A. Boling, T.J. Zane and Stephen B. Williams Case No. 8242034 IN THE CALIFORNIA SUPREME COURT CATHERINEA. BOLING;T. J. ZANE AND STEPHENB. WILLIAMS Petitioners, Vv. CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD Respondent. CITY OF SAN DIEGO; SAN DIEGO MUNICIPAL EMPLOYEES ASSOCIATION; DEPUTY CITY ATTORNEYS ASSOCIATION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 127 AND SAN DIEGO CITY FIREFIGHTERS LOCAL145 Real Parties in Interest. PETITIONERS’ CONSOLIDATED ANSWER TO AMICUSBRIEFS FILED IN SUPPORT OF UNION REAL PARTIES IN INTEREST AND RESPONDENT BY INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL EMPLOYEES LOCAL21, OPERATING ENGINEERS LOCAL UNIONNO. 3, AND MARIN ASSOCIATION OF PUBLIC EMPLOYEES; THE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS; SAN DIEGO POLICE OFFICERS ASSOCIATION; SERVICE EMPLOYEES INTERNATIONAL UNION, CALIFORNIA STATE COUNCIL; AND ORANGE COUNTY ATTORNEYSASSOCIATION Petition For Review and/or Disposition to Court ofAppeal to Hear Motion at the Court of Appeal From Public Employment Relations Board Decision No. 2464-M. (Case Nos. LA-CE-746-M; LA-CE-752-M; LA-CE-755-M; and LA-CE-758-M) Lounsbery Ferguson Altona & Peak, LLP Kenneth H. Lounsbery/ SBN 38055 James P. Lough/ SBN 91198 *Alena Shamos/ SBN 216548 Phone: (760) 743-1201; Fax: (760) 743-9926 Attorneys for Petitioners, Catherine A. Boling, T.J. Zane and Stephen B. Williams TABLE OF CONTENTS TABLE OF CONTENTS......cccsssssscsssessssssssssessssssessensesecensecssssasarssssesesseeees 2 TABLE OF AUTHORITIES........ccsccsscssssssscssessscssscseccssesesesssssssccssesseees 3 CONSOLIDATED ANSWER TO AMICUSBRIEFS..........:sssssscsscseeees 6 I. AMICI ARE FURTHERING THE EFFORTS OF PERB AND THE UNIONS TO OVERRIDE ESTABLISHED CONSTITUTIONAL RIGHTS. 00...csssccscsscsecsesesssssssssssserecseresesennes 6 Il. THE MMBA DOES NOT APPLY TO CITIZEN’S INITIATIVESG........cscccssssssresscssssccesccssssssssscssssssessesssossossseessssasscecsssceees 8 Il. THE DENOVO STANDARD OF REVIEW OF PERB’S DECISION IS PROPER.......csssssssssssssssssssseesesessssossesessssssessessssseseveseee 12 A. The Court of Appeal Correctly Applied the De Novo Standard of Review to PERB’s Decision.............ccscsssssssssesessssersscsssscsessases 12 IV. THE COURT OF APPEAL DEFERRED TO PERB’S FACTUAL FINDINGS IN REACHING ITS HOLDING...........cecssssssssereesesees 16 V. CONCLUSION.......cccccssscsssecsssecssssccsscscssessscsesessesscsssccsscsensesesesesensesees 18 CERTIFICATE OF WORD COUNT.......c.ccsccsscssscssssescssererserssssscssesaes 19 PROOF OF SERVICE.u.........ccscsssssssccssccesssssscceseassssessssseccescsencessesssseneesees 19 TABLE OF AUTHORITIES State Cases American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal4th 446.000... ceccccscceceseseeseceeseeeesecsasecsaeesessecseesaeeeseenses 13 Associated Home Builders etc, Inc. v. City ofLivermore (1976) 18 Cal.3d. 582...eeececeeeseeceeesceeeeseeseceeeeeaeeecaeeeaeeaeteeseeeeeseeseees 9 Azusa Land Partners v. Dep't ofIndus. Relations (2010) 191 CalApp.4th Lieccceesessseeessecsesteesnecesseeesesereesesateeneeeaes 12 Banning Teachers Assn. v. PERB (1988) 44 Cal.3d. 799cesses 12,14 Blotter v. Farrell (1954) 42 Cal.2d 804 ......cccccccssssssesssceesseeeseestsessresenseens 14 Boling v. Public Employment Relations Bd. (2017) 10 Cal.App.5th 853..... 6 California Cannabis Coalition v. City of Upland (2017) 3 Cal. Sth 92400cccecsseesseeesereseeseeaecesseesceeeseaeeetaes 8,9, 14,17 California State Teachers' Retirement System v. County ofLos Angeles (2013) 216 CalApp.4th 41oceccccseeessssenecsessreseneeesseeenessessecssesseseae 15 City ofPalo Alto v. California Public EmploymentRelations Bd. (2016) 5 CalApp.Sth 1271occccesecsseessesesseeseeeseseaceeeasecsessecseseeessseaes 13 Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d. 575......... 13 DeVita v. County ofNapa (1995) 9 Cal.4th 763 .....cccccsccccsssscssssstesssessseeserees 9 Farley v. Healy (1967) 67 Cal.2d. 325 ......eccscscsssccsccesssececesesseesssesseees 11,14 Friends ofSierra Madre v. City ofSierra Madre (2001) 25 Cal.4" 165..8, 9 Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist. (2011) 202 Cal.App.4th 404...eccccesecseseseeereeeseseeeeeensessenseesseesseseenes 15 Jeffrey v. Superior Court (2002) 102 Cal.App.4th 1 oo... ccceceeeeeseeees 10 Kennedy Wholesale, Inc. v. State Bd. ofEqualization (1991) 53 Cal.3d 245oececcccesssecsececesecsesecssecseseeesseeeeseeseeessessesenseserees 9 League of Women Voters v. Countywide Criminal Justice Coordination Comm. (1988) 203 Cal.App.3d 529 oo... eecccsesscsssessecesseeessessstssasessesseseees 8 Native Am. Sacred Site & Env’ Protection Ass’n v. City ofSan Juan Capistrano (2004) 120 Cal.App.4th 961.0...cececececsteceseeeees 11, 14, 15 Perry v. Brown (2011) 52 Cal.4th 1116.0... cece ccescecesssseeseersceeenees 7, 15,17 Rossi v. Brown (1995) 9 Cal4th 688 00... cccccccccssecssseceessseecsseeeseeeeeesnaes 9,15 San Diego Teachers Assn. v. Super. Ct. (1979) 24 Cal.3d. 1wc 13 San Mateo City School Dist. v. PERB (1983) 33 Cal.3d 850 .........cccceeeee 14 Santa Clara County Counsel Attorneys Ass'n v. Woodside (1994) 7 Cal.4th 525oeccccsceceseeneceteeneeeeseceeeeseceaeeseeseaeesesseesseeneeeeases 14 Save Stanislaus Area Farm Economy v. Board ofSupervisors (1993) 13 Cal-App.4th 141 oo.eccceeeeeseeseeeveneeeeeeesterseeeaes 11, 14, 15 Seal Beach Police Officers Assn. v. City ofSeal Beach (1984) 36 Cal.3d 591eeeeccssccsseeeceteesseseeecssessececesseeeatsaeeeseesseeenseses 7,8 Strumsky v. San Diego County (1974) 11 Cal.3d 28 ......cccccccseessscesseeeneees 15 Yamaha Corp. ofAmerica v. State Bd. ofEqualization (1998) 19 Cal4th Doeesecseccseeserseeeeecseceeeeeaeeeaeeeneeesaeeseesas 12, 13 State Statutes Elec. Code, § 342 .o.cccccccccccsscssesscessesssssssesscsesscesecssessessecssssessesseseeessecssseusas 7 Gov. Code, § 3504.5 ooo ceccescccssseesssecescecsreeneeseeceneceneesenesesecssssensssessecenaeeneas 8 Gov. Code, § 3505 woo. .eeseccssecesseceessseceneceesssececseseecssaeeseseaeeeessesseesssueeeeaeees 8 Gov. Code, § 3509.5 ooo ceeesceceseeceseeeneceeeeceesaeeeeeeeneeeeeseseaeeseeenaeeeaees 16, 17 Pub. Res. Code, § 21063 .0.....cccceescesecesenscecceeseeeeceeeceseescaseesaesnessseessseeseneeees 9 Pub. Res. Code, § 21080(8)..........:ccccsecesscesseeseeecsseecesnaecesseeesseeenseeeeessesessees 9 State Constitution Cal. Const. Art. XT, § 3, subd. (D) oo.eeeeeceeseeeeeeceseereeseeeneeeeesnenseeesseeseees 8 Cal. Const. Art. XI, § 3, subd. (C) ..... cece cccscecssssseeesessseeeesseeecenanes 8, 14, 15 Cal. Const. Art. XI, § 5, subd. (b) oo... cc eececeeseecerecseseessseeseeensesssesseesesssens 14 Federal Cases Ampersand Publishing, LLC v. National Labor Relations Board (D.C.Cir. 2012) 702 F.3d 51 oeeeeseesccsteseceesetecesesesceeeesecersaeesseeseseessessetseensesseesees 15 International Longshoremen’s Assn. v. National Labor Relations Board (D.C. Cir. 1984) 735 F.2d 1384 oeceecesesesscesscsseseeesseseeesessessessessecasens 14 McDermott v. Ampersand Publishing, LLC (9th Cir. 2010) 593 F.3d 950 15 Regulations B CCR, § 32210... cceccecesscccesseecssessteesseneeeeesesensnseesseseeseeeeseeeessaeeeeses 1] B CCR, § B24 LO.eeececcccseecsseceeseessecsseeeeesessneeseseseseessessseeessasessesesatesenes 11 B CCR, § 32602...ccccececsscecesecessecesecsecsnesseseseeseseesseessseseeeeseseeenasesesenaees 11 B CCR, § 32603occeeccsccesecesceessseesecsseesceesessseeceseeseeeeeesseeesseeesaeeesaeeesees 1] 8 CCR, § 33210... eecccceceseesssecesseeeseseessecssesseeesssessssesseceseecsaesesaceesteessese 10 CONSOLIDATED ANSWER TO AMICUS BRIEFS Petitioners, Catherine A. Boling, T.J. Zane and Stephen B. Williams ("Proponents/Petitioners"), in accordance with California Rules of Court, rule 8.520, subd. (f)(7), respectfully submit this consolidated Answer to AmicusBriefs filed by amici curiae International Federation of Professional and Technical Employees Local 21, Operating Engineers Local Union No. 3, and Marin Association Of Public Employees; the International Association ofFire Fighters; San Diego Police Officers Association; Service Employees International Union, California State Council; and Orange County Attorneys Association — by Respondent, California Public Employment Relations Board (PERB or Respondent) and Real Parties in Interest, San Diego Municipal Employees Association, Deputy City Attorneys Association, American Federation of State, County and Municipal Employees, AFL-CIO, Local 127, and San DiegoCity Firefighters Local 145 (collectively Real Party Unions — in support of Union Real Parties In Interest and PERB’s Petitions for Review of the Decision of the Court of Appeal, Fourth Appellate District, Division One, published in Case No. D069626 (consolidated with D069630), hereinafter referred to as Bolingv. Public Employment Relations Bd. (2017) 10 Cal.App.5th 853 (Opinion). 1 AMICI ARE FURTHERING THE EFFORTS OF PERB AND THE UNIONS TO OVERRIDE ESTABLISHED CONSTITUTIONAL RIGHTS. Amici, like PERB and the Unions, attempt to expand the scope ofthe MMBA,and broaden PERB’s reach, to citizen’s initiatives. They are not, despite their claims to the contrary, attempting to maintain the historic application of Meyers-Milias-Brown Act (MMBA) or the established judicial deference to PERB. Amici reiterate arguments raised by PERB and Real Party Unions, none of which warrantthe reversal of the Opinion. They also proclaim that the Opinion’s limited deference to PERB creates inconsistencies in the law; while simultaneously ignoring the uniformity established by the Opinion’s answerto the question posed by the Supreme Court, in Footnote 8 of People ex rel. Seal Beach Police Officers Assn. v. City ofSeal Beach (1984) 36 Cal.3d 591, as to whether the MMBA meet and confer requirements applied to “charter amendments proposed by initiative.” (Seal Beach, fn. 8.) That answer was “no”: We conclude the meet-and-confer obligations under the MMBAapply only to a proposed charter amendmentplaced on the ballot by the governing body of a charter city, but has no application when such proposed charter amendmentis placed on the ballot by citizen proponents through the initiative process. (Opinion, p. 6; emphasis added.) Amici dance around the undisputed evidence that the CPRI was a legitimate citizen sponsoredinitiative requiring the City to comply withstrict procedural requirements that cannot be disregarded in favor of the MMBA. (i.e. AR 3:26:00731) (Opinion, at 41-43.) In direct contrast to the arguments presented by Amici, PERB’s Decision found “no evidence” that the Proponents were agents of the City. Nor was there any evidenceof control of the CPRI campaign by the Mayor. (AR 10:156:002660.) PERB and the Unions in fact admit that Proponents are the legal proponents who circulated the CPRI and obtained over 145,000 signatures. (Real Party Unions’ Brief, p. 15; PERB Brief, p. 19.) (Elec. Code, § 342; Perry v. Brown (Perry) (2011) 52 Cal.4th. 1116, 1127, 1141, 1144 (fn. 14).) Because the Mayorneither controlled the independent campaign nor received any public funds, PERB could not legally link the City Council, through the Mayor, to a private initiative campaign. CPRI wasa citizen’s initiative, controlled by citizens. And the Mayor, as a citizen and as a municipal employee, had the right to participate in a citizen’s group supporting the CPRI. (See League ofWomen Voters v. Countywide Criminal Justice Coordination Comm. (1988) 203 Cal.App.3d 529, 555.) Amici’s attempt to further the contrary argument made by PERB and the Unions continuestheir effort to undermine the purpose behind the adoption ofdirect democratic methods. Proponents continue to vehemently opposethe efforts of PERB and Amici to deprive the People of their reserved constitutional rights. Il. THE MMBADOESNOT APPLY TO CITIZEN’S INITIATIVES. Government Codesection 3505, on its face, applies to “the governing body of a public agency, or such boards, commissions, administrative officers or other representatives as may be properly designated by law or by such governing body.” (Gov. Code, § 3505.) Section 3504.5 is likewise applicable to the “governing body of a public agency.” (Gov. Code, § 3504.5.) Consistent with the holding in Seal Beach, the Opinion acknowledges that the procedures set forth in those sections are consistent with, and applicable to, city sponsoredinitiatives. (Opinion p.33, citing Seal Beach, at 601 and 602.) A voter’s initiative, however, is entirely outside the scope of those sections’ procedural meet and confer requirements. Proponents, and the electorate, are not the “governing body” or a “public agency.” (See, California Cannabis Coalition v. City of Upland (Upland) (2017) 3 Cal.5th 924, fn. 11.) This is consistent with the bright line, established in the Constitution between a council-sponsored and citizen-sponsored charter amendment made by “initiative or by the governing body.” (Cal. Const. Art. XI, § 3, subd. (b) and (c); emphasis added.) This distinction applies to all initiative subjects. (i.e., Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165.) In Sierra Madre, this Court reasoned that CEQA applies to a council-sponsored measure because the act of placing the measure onthe ballot is a discretionary act. CEQA applies to “discretionary acts” of a “public agency” unless exempted. (Pub. Res. Code, § 21080(a).) The term “public agency”includes charter cities. (Pub. Res. Code, § 21063.) As such, CEQAis a matter of “statewide concern”. However, CEQA,like the MMBA,is not applicable to a circulated citizen initiative. (See, Friends ofSierra Madre, supra.) The procedural requirements of the MMBAare not consistent with the strict procedures a City must follow in placing a citizen sponsoredinitiative on the ballot. The broad scopeofinitiative poweris “jealously guarded”, subject to “precious few limits” and not constrained by “procedural requirements imposed on the Legislature and local governments.... without evidence that such wastheir intended purpose.” (Upland, at 935, citing Rossi v. Brown (1995) 9 Cal.4th 688, 695; see also DeVita v. County of Napa (1995) 9 Cal.4th 763, 775; Associated Home Builders etc, Inc. v. City ofLivermore (1976) 18 Cal.3d. 582, 588, 593-596; and Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 251-252; emphasis added.) Evidence ofintent to restrict the initiative power must be clear and cannot be implied. “Only by approving a measurethat is unambiguousin its purposeto restrict the electorate’s own initiative power can the voters limit such power...” (Upland, at 948; emphasis added.) In Upland, this Court compared the merits of two constitutional provisions, each enacted by the electorate. In a delicate exercise, it found one to be immune from the impacts ofthe other. The task before the Court in this case is less difficult than in Upland, the solution moreclear-cut. Here, we comparethe imperatives of Article XI against the proceduresset forth in the MMBA,a statutory scheme. The application of MMBAis being matchedagainst a reserved powerofthe constitution. PERB is impermissibly attempting to apply the procedural requirements of the MMBAto the voter initiative procedure, thereby depriving Proponents, and the electorate, of constitutionally reserved initiative rights and serving as the basis for Proponents’ as applied challenge before the Court of Appeal (Case No. D069626; See, Mathewsv. Harris (2017) 7 Cal. App. Sth 334 [defining the “as applied” challenge to the unconstitutional application of an otherwise valid statutory scheme.”]. Plainly stated, the application of the MMBA may not conflict with Constitutionally reserved rights. Accordingly, the California Legislature never intended to, and did not apply the MMBAto slow downorhalt the “jealously guarded”citizens’ direct petitioning process for the purpose of protecting public sector labor bargaining’. This is further evidence by PERB’s administrative procedures excluding initiative proponents, and PERB’sactive efforts to remove Proponents from the action before the Court of Appeal. PERB vehemently argued, in its substantive briefing before the Court of Appeal, that the MMBAdoesnot apply to proponents of a voter initiative. It asserted that allowing “non-parties,” such as Proponents, to seek judicial review runs contrary to the legislative intent behind the MMBA,to address issues “between public employers and public employee organizations.” (PERB’s Resp.Brief, Case No. D069626,pp. 41-42.) PERB also argued, in its Motions to Dismiss Proponents’ Appeal and to dismiss Proponents from their role as Real Parties in Interest in ' As discussed in Boling’s AnswerBrief on the Merits at pp. 24-25, the City wasrequired to follow “an expeditious and complete procedure for the exercise by the people oftheinitiative” consistent with the policies ofprompt action embodied in the Elections Code, the City’s Charter, Article III, section 23 (Amendment voted November 8, 1988; effective April 3, 1989) (emphasis added.) Additionally, the CPRI specified a July 1, 2012 date for pension benefit calculations, and the date on whichaninitiative is placed on the ballot must respect the deadlines set forth therein. (AR 16:193:004076 (City’s Exh. E); Jeffrey v. Superior Court (2002) 102 Cal.App.4th 1, 9-10.) 10 the City’s Appeal, that PERB’s administrative proceedings challenging the validity of the CPR] were never intendedto include, muchless account for, initiative Proponents. PERB thus admitted that its rules were not designed to regulate a citizens’ initiative. (see, 8 Cal. Code Regs., §§ 32210, 32410, 32602, 32603 and 33210; PERB’s Motion to Dismiss, Case No. D069630, p. 17.) The very processofplacing a citizen sponsoredinitiative on the ballot renders the MMBA’s meet and confer obligation inapplicable. The City entirely lacks discretion to “do anything other than to place a properly qualified initiative on the ballot.” (Opinion,at p. 30, citing Farley v. Healy (1967) 67 Cal.2d. 325, 327; Save Stanislaus Area Farm Economy v. Board ofSupervisors (1993) 13 Cal.App.4th 141, 148; see Native Am. Sacred Site & Env'l Protection Ass’n v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961, 966 [governing body mustplace the initiative on the ballot without alteration].) The City Council of Real Party in Interest, City of San Diego (City) properly exercised its mandatory duty to place the CPRI on the ballot”. The MMBA doesnot — and wasneverintendedto — supersede these mandates. * Amici, like Respondentandthe Unions,arguethat the City should have met and conferred over a competing measure. (See, PERB Brief, pp. 73 — 75; Unions Brief, pp. 63-64; Amicus Curia Brief of Service Employees International Union, California State Council p. 9; Brief of Amicus Curia Orange County Attorneys Association in Support of Union Real Parties In Interest and Respondent, pp. 10-11) However, the Unions never proposed a competing measure; they only demanded meeting and conferring over the CPRI/Proposition B. The City Attorney’s Office accordingly responded to the latest request to “meet and confer” over the terms of CPRI. (AR 1:1:00043-00047 (Exh. 1(G) to SDMEA UPC).) Moreover, Amici, PERB and the Unionscite no authority for the proposition that the City was required to propose a competing measure. 1] Il. THE DENOVO STANDARD OF REVIEW OF PERB’S DECISION IS PROPER. A. The Court of Appeal Correctly Applied the De Novo Standard of Review to PERB’s Decision. This is not a case that warrants the deferential standard of review established under Banning Teachers Assn. v. PERB (Banning) (1988) 44 Cal.3d. 799, 804, as this is not a matter that was properly within the purview of PERB. Voterinitiative measures are outside the scope of the MMBA and beyond the purview of PERB’s expertise. The Opinion properly applied to PERB the de novo standard set forth in Yamaha Corp. ofAmerica v. State Bd. ofEqualization (Yamaha) (1998) 19 Cal.4th 1. Quoting Yamaha, the Opinionstates: “ ‘The standard for judicial review of agency interpretation of law is the independent judgmentof the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action.’ ”’ Yamaha's conceptual framework noted that courts must distinguish between two classes of interpretive actions by the administrative body— those that are “quasi-legislative” in nature and those that represent interpretations of the applicable law—andcautionsthat “because of their differing legal sources, [each] command significantly different degrees of deference by the courts. (citations omitted) (Opinion, p. 24, citing Yamaha,at 8 and 10.) The Yamaha decision, “recognized that... an agency's interpretation of the law does not implicate the exercise of a delegated lawmaking power but ‘instead ... represents the agency's view ofthe statute's legal meaning and effect, questions lying within the constitutional domain of the courts.”’ (Opinion, p. 25, quoting Yamaha at 11; see also, Azusa Land Partners v. Dep’t ofIndus. Relations (2010) 191 Cal.App.4th 1, 14.) 12 PERB has acknowledgedthat it is the duty of the reviewing court to “construe the meaning ofthe statute at issue.” (PERB Brief, p. 37; citing Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d. 575, 587.) This Court’s holding in Cumero, supports the proposition thatit is “the duty of this court, .... to state the true meaning ofthe statute ... even thoughthis requires the overthrow ofan earlier erroneous administrative construction.” (Cumero, at 587; City of Palo Alto v. California Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1288.) And as stated in American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, cited on pp. 38 and 61 of PERB’s Brief, “[h]ow much weight to accord an agency’s construction is “situational,” and greater weight may be appropriate when an agency has a ““comparative interpretive advantage over the courts.’” (American Coatings Assn., at 431, citing Yamaha.) The key distinction made in Yamaha, and correctly relied on in the Opinion,is that the “expertise” which formsthe basis for greater deference to an agency’s interpretation of the law, arises when the agency interprets “legal principles within its administrative jurisdiction and, as such ‘may possess special familiarity with satellite legal and regulatory issues.” (Opinion, citing Yamaha at 11.) The judiciary, as the branch of government “charged with the final responsibility to determine questions of law’ must ultimately decide when, and how much,weight will be given to an agency’s legal interpretation. (Opinion, citing Yamaha at 11; see also Los Angeles Unified School Dist. v. Public Employment Relations Bd. (1983) 19] Cal.App.3d 551, 556-557 (no deference when the decision “does not adequately evaluate and apply commonlawprinciples” Opinion, p. 26, fn. 21).) PERB’s expertise lies in the application of the MMBAto labor relations between public employees and public employers. (San Diego Teachers Assn. v. Super. Ct. (1979) 24 Cal.3d. 1, 12; Santa Clara County 13 Counsel Attorneys Ass’n v. Woodside (1994) 7 Cal.4th 525, 539; Unions Brief, pp. 37-38.) The greater deference under Banning would apply only if this was merely an issue of labor relations involving employers and employees. (Banning, at 803-804.) By PERB’s own admission,its expertise does not lie with the interpretation of constitutional issues. (AR 11:186:003006; 11:186:003017.) Application of the Banning rule to this case would extend PERB’s expertise beyond its true parameters. PERB’s lack of expertise in this case is evidenced, among other things, by PERB ignoring City’s mandatory duty to place a qualified measure on the ballot because an elected official gaveit political support. (Cal. Const. Art. XI, §§ 3, subd. (c) and 5, subd. (b); Upland, at 934-935, Farley v. Healy (1967) 67 Cal.2d 325, 327; Save Stanislaus Area Farm Economy y. Board of Supervisors (1993) 13 Cal.App.4th 141, 148; Native Am. Sacred Site & Env’l Protection Ass’n v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961, 966; Blotterv. Farrell (1954) 42 Cal.2d 804.) Amici, like PERB and the Unions, cite no law establishing PERB’s expertise over voterinitiatives, or related constitutional and election issues’. (see, Opinion, p. 41, fn. 32, appropriately distinguishing the decision in City of Palo Alto v. California Public Employment Relations Bd. (2016) 5 Cal.App.Sth 1271, which acknowledged PERB’s discretion regarding meet and confer obligations associated with a city sponsored initiative, not a voter’s initiative.) As evidenced by the inaccuracy of PERB’s conclusions, PERB likewise has no “comparative interpretive advantage over the courts” 3 For example, San Mateo City School Dist. v. PERB (1983) 33 Cal.3d 850 and Local 1814, International Longshoremen’s Assn. v. National Labor Relations Board (D.C. Cir. 1984) 735 F.2d 1384, cited by Amici Orange County Attorneys Association, at p. 14, in support of the proposition that PERB deserves greater deference, have no analysis or reference to constitutional issues associated with voter initiatives, and thus have no bearing onthis case. 14 in deciding agency principles in the context of constitutional issues associated with voter’s initiatives. (See, California State Teachers' Retirement System v. County ofLos Angeles (2013) 216 Cal.App.4th 41, 55.) PERB’s lack of expertise regarding agency principles applicable to initiatives is demonstrated by its interpretation of “agency” resulting in a Mayor, in his official capacity, becoming the legal representative of a citizen’s initiative despite the constitutional separation between citizen and local government. (Cal. Const. Art. XI, § 3, subd. (c); see generally Perry v. Brown (2011) 52 Cal.4th 1116; Rossi v. Brown (1995) 9 Cal.4th 688.) PERB also attempted to apply “agency” theory to a City Council that was under a mandatory duty to place the charter measure on the ballot, without alteration, under content neutral election laws. (See, Native Am. SacredSite & Env’l Protection Ass’n v. City of San Juan Capistrano (2004) 120 Cal.App.4th at 966 [governing body mustplacetheinitiative on the ballot without alteration]; Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th at 147-148.] The law is consistent that no “deference” is owed “to the administrative agency’s view of the First Amendment.” (McDermottv. Ampersand Publishing, LLC (9th Cir. 2010) 593 F.3d 950, 961; see also Ampersand Publishing, LLC v. National Labor Relations Board (D.C. Cir. 2012) 702 F.3d 51, 55 [We owe no deference to the Board’s resolution of constitutional questions.”].). A court must exercise its independentjudgment because “’[the] abrogation ofthe right is too important to the [Proponents] to relegate it to exclusive administrative extinction.” (Strumsky v. San Diego County (1974) 11 Cal.3d 28, 34; Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist. (2011) 202 Cal.App.4th 404, 414.) These fundamental rights deservea standard ofreview commensuratewith their responsibilities to protect the right of the People to propose legislation without impediment. 15 a M e IN E Amicifight to apply the Banning standard of review, despite PERB’s admission that the constitutional issues involved were beyondits depth. In so doing they perpetuate PERB’s and the Unions’ efforts to expand the degree of deference courts must grant to PERB. They do not seek to maintain historically established parameters, rather, they demand an unprecedented and legally unsupportable expansion of such parameters. IV. THE COURT OF APPEAL DEFERRED TO PERB’S FACTUAL FINDINGSIN REACHING ITS HOLDING. _ Amici repeat PERB’s and the Unions’ arguments that the Court of Appeal would have reached a different conclusion applying Government Code section 3509.5 (Brief of Amicus Curiae the International Association of Fire Fighters in Support of Union Real Parties in Interest, pp. 20-21; Unions Brief, p. 40; PERB Brief pp. 62- 64) and that Section 3509.5 mandatesapplication of the substantial evidence standard of review. (PERB Brief, p. 43; UnionsBrief, p. 41.) However, the Opinion expressly defers to PERB’s dispositive factual findings. (Opinion, p. 22.) The Court of Appeal expressly states that “the evidence was undisputed (and PERB did not conclude to the contrary) the charter amendment embodied in the CPRI was placed on the ballot because it qualified for the ballot under the “citizens' initiative” procedures for charter amendments.” (Opinion, p. 41). The Opinion goes on to note that “there was no evidence, and PERB did not find, that the charter amendment embodied in the CPRI was placed on the ballot because it qualified as a ballot measure sponsored or proposed by the governing body of City.” (Opinion, p. 42.) Based on those undisputed factual findings, the Court of Appeal evaluated, 16 whether PERB's decision, which appearsto rest on the theory that the participation by a few government officials and employees in drafting and campaigning for a_ citizen-sponsored initiative somehow converted the CPRI from a citizen-sponsored initiative into a governing- body-sponsored ballot proposal, is erroneous under applicable law. (Opinion, pp. 42-43; emphasis added; seealso p. 65.) Thus, even applying the more deferential standard to PERB’s factual findings Court of Appeal’s analysis resulted in its conclusion that “PERB's determination waserror.” (Opinion, p. 43.) Moreover, Section 3509.5, further demonstrates the lack of Legislative intent to apply the MMBAto voterinitiatives. (Upland, at 945- 946.) On its face, Section 3509.5, subd. (a) makes no referenceto initiative proponents among the list of parties authorized to bring a petition for extraordinary relief. (See, Gov. Code, § 3509.5, sub.(a) listing the “charging party, respondent, or intervenor”.) Section 3509.5 thus underscores the very reason why PERB should not be afforded deference, as citizens initiatives are beyond the scope of PERB’s expertise and, as demonstrated by PERB’s efforts to exclude Proponents in violation of Perry v. Brown*, beyondits jurisdiction. (Perry v. Brown (2011) 52 Cal.4th at 1127.) //1 //1 /// ‘ Perry v. Brownis clearthat the proponents ofan initiative must be able to participate to defendtheirinitiative. 17 V. CONCLUSION For the reasons stated above, and in Proponents’ Answer on the Merits, Amici’s arguments in support of PERB and the Unions should be rejected, and the Court ofAppeal’s Opinion should be upheld. DATED: January 29, 2018 LOUNSBERY FERGUSON ALTON) & PEAK, LLP Kedpeth H. Lounsbery James P. Lough Alena Shamos Attorneys for Petitioners, Catherine A. Boling, T. J. Zane, and Stephen B. Williams 18 CERTIFICATE OF WORD COUNT Pursuant to California Rules of Court, Rule 8.520(c), I certify that this Consolidated Answer to Amicus Briefs is proportionally spaced, has a typeface of 13 points or more, and contains 3,591 words, excluding the cover, the tables, the signature block and this certificate, which is less than permitted by the Rules of Court. Counsel relied on the word count feature of the word processing program used to preparethis brief. DATED: January 29, 2018 LOUNSBERY FERGUSON ALTONA &PEAK, LLP oesa.( LotirvncnmentnnGlsne, Le KenriethLounsbery James P. Lough Alena Shamos Attorneysfor Petitioners, Catherine A. Boling, T. J. Zane, and Stephen B. Williams 19 SUPREME COURTNO. 8242034 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PROOFOF SERVICE Catherine Boling, etal, Petitioner Vv. Public Employment Relations Board Respondent; City of San Diego, Real Parties in Interest California Fourth District Court of Appeals Case No. D069626, consolidated with Case No. D069630 I, Kathleen Day, declare that I am over 18 years of age, employed in the City of Escondido, and am nota party to the instant action. My business address is 960 Canterbury Place, Ste. 300, Escondido, California. On January 26, 2018, I served the PETITIONERS’ CONSOLIDATED ANSWER TO AMICUS BRIEFS FILED IN SUPPORT OF UNION REAL PARTIES IN INTEREST AND RESPONDENT BY INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL EMPLOYEES LOCAL 21, OPERATING ENGINEERS LOCAL UNION NO. 3, AND MARIN ASSOCIATION OF PUBLIC EMPLOYEES; THE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS; SAN DIEGO POLICE OFFICERS ASSOCIATION; SERVICE EMPLOYEES INTERNATIONAL UNION, CALIFORNIA STATE COUNCIL; AND ORANGE COUNTY ATTORNEYS ASSOCIATION; to therecipients listed below via the following methods: BY MAIL I placed each such sealed envelope, with postage thereon fully prepaidforfirst-class mail for collection and mailing at Lounsbery Ferguson Altona & Peak LLP, Escondido, California, following ordinary business practices. I am familiar with the practice of Lounsbery Ferguson Altona & Peak LLP for collection and processing of correspondence, said practice being that in the ordinary course of business, correspondenceis deposited in the United States Postal Service the same day asit is placed for collection. VIA EMAIL: Pursuant to California Rules of Court, Rule 8.78, I sent the documents via email addressed to the email address listed for each recipient, and in accordance with the Code ofCivil Procedure and the California Rules of Court. I am readily familiar with the firm’s practice of preparing and 20 serving documents via email, which practice is that when documentsare to be served by email, they are a scanned into a .pdf format and sent to the addresses on that sameday andin the ordinary course ofbusiness. J. Felix De la Torre, General Counsel Wendi Ross, Deputy General Counsel Jeremy G. Zeitlin Joseph W. Eckhart, Regional Attorney Public Employment Relations Board 1031! 18th Street Sacramento, CA 95811-4124 PERBLitigation@perb.ca. gov M.Travis Phelps, Deputy City Attorney City of San Diego 1200 Third Avenue,Ste. 1100 San Diego, CA 92101 mphelps@sandiego.gov Fern M. Steiner Smith Steiner Vanderpool & Wax 401 West A Street, Ste. 320 San Diego, CA 92101 fsteiner@ssvwlaw.com Ann M. Smith Smith, Steiner Vanderpool & Wax 401 West A. Street, Ste. 320 San Diego, CA 92101 James J. Cunningham Law Offices of James J. Cunningham 4141 Avenida De La Plata Oceanside, CA 92056 jimcunninghamlawi@email.com Ellen Greenstone Rothner, Segal & Greenstone 510 S. Marengo Avenue Pasadena, CA 91101 egreenstone@erselabor.com 2] Attorneysfor Public Employment Relations Board Attorneysfor City ofSan Diego Attorneysfor San Diego City Firefighters, Local 145 Attorneysfor, and Agent of Service ofProcessfor, San Diego Municipal Employees Association Attorneysfor Deputy City Attorneys Association ofSan Diego Attorneysfor AFSCME, AFL- CIO, Local 127 Andrew Ziaja Arthur Liou Leonard Carder LLP 1330 Broadway, Ste. 1450 Oakland, CA 94612 aziaja‘@leonardcarder.com aliou@leonardcarder.com Meriem L. Hubbard Harold E. Johnson Pacific Legal Foundation 930 G Street Sacramento, CA 95814 mhubbardi@pacificlegal. ore hjohnson@pacificlegal.corg Kerianne Steele Anthony Tucci Weinberg Roger & Rosefeld 1001 Marina Village Parkway, Ste. 200 Alameda, CA 94501 ksteele@unioncounsel.net atuccl@unioncounsel.net Thomas A. Woodley Woodley & McGillivary 1101 Vermont Avenue, N.W. Ste. 1000 Washington, DC 20005 Served by mail only Marianne Reinhold Laurence Zakson William Y. Shen Reich Adell & Cvitan, APC 3550 Wilshire Boulevard, Ste. 2000 Los Angeles, CA 90010 marianneri@rac-law.com laurencez/@rac-law.com aanea 22 Attorneysfor Amici, IBEW, Local 1245; IFPTE Local 21; Operating Engineers Local Union No. 3; Marin Association ofPublic Employees Attorneysfor Amici, Pacific Legal Foundation; Howard Jarvis Taxpayers Association, National Tax Limitation Committee Attorneysfor Amicus, Service Employees International, California State Council Attorneysfor Amicus, International Association of Fire Fighters Attorneysfor Amicus, Orange County Attorneys Association Karen Hewitt Jones Day 4655 Executive Drive, Ste. 1500 San pice.CA 92121 Beth Heifetz G. Ryan Snyder Jones Day 51 Louisiana Avenue, NW Washington, DC 20001 bheifetz@jonesday.com rsnyder(@jonesday.com Arthur A. Hartinger Renne Sloan Holtzman Sakai, LLP Public Law Group 350 SansomeStreet, Ste. 300 San Francisco, CA 94104 aharlinger@epubliclawgroup.com Michael A. Conger Law Office of Michael A. Conger 16236 San Dieguito Road, Ste. 4-14 Rancho Santa Fe, CA 92067 Attorneysfor Amicus, San Diego Taxpayers Educational Foundation Attorneysfor Amici, League of California Cities; California State Association ofCounties; International Municipal Lawyers Association Attorneysfor Amicus, San Diego Police Officers Association I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on January 29, 2018 at Escondido, California. KGttL6 o,dog ‘Kathleen Day 23