The voters of San Berdardino passed Measure K in 2020 to limit supervisors to a single four-year term at a monthly compensation of $5,000. The trial court invalidated Measure K as unconstitutional. But the Court of Appeal in San Bernardino County Board of Supervisors v. Monell (D2d4 May 25, 2023) --- Cal.Rptr.3d ---- held the term limit and pay cap were constitutional. (As to new supervisors, though, the pay cap will not apply.)
The procedural wrinkle was whether the appeal was mooted when, a new term- and pay-limit measure, Measure D, passed in 2022, totally superseding Measure K. Justice Menetrez thought Measure K was moot, and filed a dissent saying so. He pointed out that, given the trial court had invalidated Measure K, and given Measure D was now in effect, Measure K was nothing but a memory. “[N]o matter what we do,” Justice Menetrez pointed out, “Measure K cannot go back into effect unless and until Measure D is invalidated.”
There was a possibility, of course, that Measure K could cease to be moot—i.e., if Measure D (which is currently on appeal) were to be invalidated. But the court could easily solve for that eventuality, Justice Menetrez noted, by staying this Measure K appeal pending resolution of the Measure D appeal.
To the possibility of a stay, the majority reasoned that there “is not even any pending request for a stay.” But this statement is not entirely forthcoming because, as Justice Menetrez notes, the county had requested a stay, which was denied (over his objection).
But to give the majority the last word: “We see no reason why the [Measure D] appeal filed later should have precedence over the one filed earlier.”
The Takeaway: It can be almost impossible to predict how a Court of Appeal will come out on a question of mootness. And despite being a jurisdictional doctrine, mootness is almost completely discretionary.
