On March 7, 2019, the Fourth District Court of Appeal published Southcott v. Julian-Cuyamaca Fire Protection District, __ Cal.App.5th __ (Case No. D074324) (2019), another in a long line of cases addressing the limitations on the scope of the constitutional referendum process.

The Julian-Cuyamaca Fire Protection District was formed pursuant to the Fire Protection District Law of 1987 to provide fire protection and emergency medical services to the unincorporated communities of Julian and Lake Cuyamaca in the County of San Diego. In 2018, the District’s board of directors passed a “resolution of application” to apply to the San Diego Local Agency Formation Commission to dissolve the District so that the area could instead be served by the County. Within 30 days of adopting the resolution, however, volunteer firefighters, voters, and residents filed a referendum petition to rescind the resolution or have it set for an election. But the District took no action to rescind the resolution or set it for election.

The plaintiffs then filed a petition for writ of mandate in the superior court to compel the District to either rescind the resolution or set the matter for election. The court denied the petition, holding that the resolution was “not subject to referendum.”

On appeal, the Court of Appeal was asked to decide whether the District’s resolution may be challenged through the voter referendum process. The Court held that the resolution is not subject to referendum because the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 prescribes the exclusive method for dissolving a fire protection district and the resolution was administrative in nature.

Under the California Constitution, “[t]he referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.” Cal. Const. Art. 2, § 9. The “[i]nitiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide.” Cal. Const. Art. 2, § 11.

The courts have consistently held that “[i]t is the ‘duty of the courts to jealously guard’ the people’s rights of initiative and referendum.” A fundamental principle of referendum law, however, is that a referendum may be used to review only legislative acts and not executive or administrative acts of a local government. Generally, an act is legislative in nature if it prescribes a new policy or plan; it is administrative in nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.

The Court noted that the Fire District Law authorizes the formation of fire protection districts to provide for fire protection services on a local level. But the Fire District Law does not contain any specific provisions covering dissolution of fire protection districts, except to mandate compliance with the Cortese-Knox-Hertzberg Act, which “shall govern any change of organization or reorganization of a district.” As defined in the Act, a change of organization includes the dissolution of a district. The legislature has thus shown its intention that the Act provides the exclusive method for dissolving a fire protection district.

The Court thus held that the District’s resolution of application, which proposed a plan of dissolution for LAFCO to consider, is not subject to the referendum process. The Court reasoned that if a district’s resolution of application were subject to referendum opponents could thwart the Act’s method for considering and challenging dissolution proposals. Use of the referendum process in such a manner would “interfere[] with and frustrate[] state [dissolution] procedures and cannot [be] sustained.” The Court also reasoned that under the Act a resolution of application is administrative in nature—a prerequisite to obtaining a decision from LAFCO, which holds the power to approve or disapprove the proposed dissolution. Accordingly, the District’s resolution is not subject to the referendum process.

Southcott v. Julian-Cuyamaca Fire Protection District doesn’t establish any new rule of law, but it does strongly underscore the long-standing rule that when a local government’s discretion is “largely preempted” by statutory mandate its action is administrative in nature and not subject to referendum.