Lacy v. City & Cnty. of S.F.

94 Cal.App.5th 238

312 Cal.Rptr.3d 391

James V. LACY et al., Plaintiffs and Respondents,

v.CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.

A165899

Court of Appeal, First District, Division 5, California.

Filed August 8, 2023

As Modified on Denial of Rehearing August 28, 2023

David Chiu, City Attorney, Wayne Snodgrass, and James M. Emery, Deputy City Attorneys for Defendants and Appellants

Keker, Van Nest & Peters, R. Adam Lauridsen, Connie P. Sung, and Stephany Martinez Tiffer, San Francisco, for Ron Hayduk, Hiroshi Motomura, and Jennifer M. Chacón as Amicus Curiae on behalf of Defendants and Appellants

Orrick Herrington & Sutcliffe, Mark S. Davies, Sheila Baynes, Kufere Laing, and John Palmer, San Francisco, for Oakland and San Diego Unified School Districts as Amicus Curiae on behalf of Defendants and Appellants

ACLU Foundation of Northern California, Angélica Salceda; and ACLU Foundation of Southern California, Julia A. Gomez for Caregiver Organization as Amicus Curiae on behalf of Defendants and Appellants

Law Office of Chad D. Morgan, Chad D. Morgan, Corona, for Plaintiffs and Respondents

Public Interest Legal Foundation, J. Christian Adams ; and Lex Rex Institute, Alexander Haberbush for J. Kenneth Blackwell as Amicus Curiae on behalf of Plaintiffs and Respondents

Immigration Reform Law Institute, Lorraine G. Woodwark as Amicus Curiae on behalf of Plaintiffs and Respondents

SIMONS, Acting P.J.

In 2016, San Francisco voters amended their city charter to authorize voting in local school board elections by noncitizen parents and guardians of school-age children. In 2022, after multiple school board elections in which noncitizens voted, the underlying lawsuit was brought alleging this charter amendment violated the California Constitution.

We reject the challenge for two reasons. First, neither the plain language of the Constitution nor its history prohibits legislation expanding the electorate to noncitizens. Second, the relevant constitutional provisions authorizing home rule permit charter cities to implement such an expansion in local school board elections. This authority is consistent with the principles underlying home rule and permits the voters of each charter city to determine whether it is good policy for their city or not.

BACKGROUND

San Francisco (City)¹ is a charter city and county. In 2016, City voters—all United States citizens² —approved Proposition N, amending their charter to allow resident noncitizens who are adult parents or guardians of City children under 19 years old to vote in local school board elections.³

Proposition N included a sunset provision but authorized the City's board of supervisors (Board of Supervisors) to continue noncitizen voting in school board elections by ordinance. (S.F. Charter, § 13.111(a)(2).) The ballot pamphlet arguments in favor of Proposition N noted that an estimated one-third of San Francisco public school students have an immigrant parent, Proposition N would increase parental involvement in schools, and increased parental involvement leads to improved educational achievement. (S.F. Voter Information Pamp. (Nov. 8, 2016), proponent's argument in favor of Prop. N, p. 142.)

In 2018, the Board of Supervisors enacted an ordinance implementing Proposition N, including provisions requiring the City's Department of Elections to develop a noncitizen voter registration form for school board elections. (S.F. Ord. No. 128-18, adding art. X, §§ 1001–1005 to S.F. Mun. Code.) Between 2018 and Proposition N's sunset date, the City held three school board elections in which noncitizens voted pursuant to Proposition N. In 2021, in anticipation of Proposition N's sunset date, the Board of Supervisors enacted an ordinance making Proposition N permanent for all future school board elections. (S.F. Ord. No. 206-21, adding art. X, §§ 1000–1000.1 to S.F. Mun. Code.) Following the 2021 ordinance, noncitizens voted in a school board recall election in February 2022.⁴

In March 2022, various plaintiffs (Plaintiffs)⁵ filed the underlying complaint and petition for writ of mandate, arguing Proposition N and its enacting ordinances violate the California Constitution and the Elections Code. Following briefing and a hearing, the trial court granted Plaintiffs’ petition and issued a judgment finding the effective ordinance void and unenforceable.⁶

DISCUSSION

I. California Constitution

Article II, section 2, subdivision (a) of the California Constitution⁷ states, "A United States citizen 18 years of age and resident in this State may vote." We hereafter refer to this provision as the Citizen Voter Provision. The City argues the provision sets only a floor for voter qualifications, and does not prohibit expanding the electorate to noncitizens.⁸ Plaintiffs argue the Constitution also establishes a ceiling, precluding such an expansion.

" ‘ "The principles of constitutional interpretation are similar to those governing statutory construction. In interpreting a constitution's provisions, our paramount task is to ascertain the intent of those who enacted it. [Citation.] To determine that intent, we ‘look first to the language of the constitutional text, giving the words their ordinary meaning.’ [Citation.] If the language is clear, there is no need for construction. [Citation.] If the language is ambiguous, however, we consider extrinsic evidence of the enacting body's intent." ’ " ( Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 49 Cal.4th 277, 289–290, 109 Cal.Rptr.3d 620, 231 P.3d 350 ( Greene ).)

The City argues the Citizen Voter Provision's identification of persons who "may vote" does not, by its terms, preclude the expansion of the franchise to noncitizens. The City notes the provision could, but does not, state, "only" a United States citizen ... may vote. Plaintiffs point to a separate provision directing the Legislature to disqualify certain people from voting: "The Legislature shall prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or serving a state or federal prison term for the conviction of a felony." ( Art. II, § 4.)

Plaintiffs argue the two provisions read together set forth the full parameters of who may and may not vote, precluding the Legislature from expanding the franchise.

In determining whether the Constitution restricts the power to expand the electorate, the relationship between the Constitution and the Legislature is critical. " ‘Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. [Citations.] Two important consequences flow from this fact. First, the entire law-making authority of the state, except the people's right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution . [Citations.] In other words, "we do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited." [Citation.] [¶] Secondly, all intendments favor the exercise of the Legislature's plenary authority: "If there is any doubt as to the Legislature's power to act in any given case, the doubt should be resolved in favor of the Legislature's action. Such restrictions and limitations [imposed by the Constitution] are to be construed strictly, and are not to be extended to include matters not covered by the language used." ’ [Citations.] On the other hand, ‘we also must enforce the provisions of our Constitution and "may not lightly disregard or blink at ... a clear constitutional mandate." ’ " ( County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 284–285, 132 Cal.Rptr.2d 713, 66 P.3d 718 ( County of Riverside ), italics added; see also Howard Jarvis Taxpayers Assn. v. Padilla (2016) 62 Cal.4th 486, 498, 196 Cal.Rptr.3d 732, 363 P.3d 628 ( Howard Jarvis ) [" ‘It is well established that the California Legislature possesses plenary legislative authority except as specifically limited by the California Constitution’ "].)

Applying these principles to the Citizen Voter Provision, we agree with the City that the plain language does not restrict the Legislature's discretionary power to expand the electorate to noncitizens. The Constitution's affirmative identification of who "may vote" does not expressly deny such power. The additional direction to the Legislature to disqualify certain groups does not necessarily imply that the Constitution rigidly cements the universe of who may and may not vote. Even if the language was ambiguous as to whether the Constitution restricted the Legislature's power, any " ‘ "doubt should be resolved in favor of the Legislature's action." ’ " ( County of Riverside , supra , 30 Cal.4th at p. 284, 132 Cal.Rptr.2d 713, 66 P.3d 718.)

Plaintiffs argue we are prevented from reaching such a conclusion by a 19th century decision, Spier v. Baker (1898) 120 Cal. 370, 52 P. 659 ( Spier ). Spier interpreted the following constitutional language: "Every native male citizen of the United States, every male person who shall have acquired the rights of citizenship under or by virtue of the treaty of Queretaro,^{[9 ]} and every male naturalized citizen thereof, who shall have become such ninety days prior to any election, of the age of twenty-one years, who shall have been resident of the State one year next preceding the election, and of the county in which he claims his vote ninety days, and in the election precinct thirty days, shall be entitled to vote at all elections which are now or may hereafter be authorized by law; provided , no native of China, no idiot, no insane person, no person convicted of any infamous crime, no person hereafter convicted of the embezzlement or misappropriation of public money, and no person who shall not be able to...