San Berdo Supervisor Challenge Not Moot, Split Appellate Court Holds

Timothy Kowal, Esq.
June 14, 2023

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.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes summaries of cases and appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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