Alliance for a Better Downtown v. Wade

• Decision Date: 25 April 2003
• Docket Number: No. A099453.,A099453.
• Citation: 133 Cal.Rptr.2d 249,108 Cal.App.4th 123
• Parties: ALLIANCE FOR A BETTER DOWNTOWN MILLBRAE et al., Plaintiffs and Respondents, v. Cheryl Mitchell WADE, as City Clerk, etc., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

133 Cal.Rptr.2d 249

108 Cal.App.4th 123

ALLIANCE FOR A BETTER DOWNTOWN MILLBRAE et al., Plaintiffs and Respondents, v. Cheryl Mitchell WADE, as City Clerk, etc., Defendant and Appellant.

No. A099453.

Court of Appeal, First District, Division 5.

April 25, 2003.

Hanson, Bridgett, Marcus, Vlahos & Rudy and Michael A. Duncheon, Joan L. Cassman and Stephen B. Peck, San Francisco, for Appellant.

Fogarty & Watson, Dennis Scott Zell, Janet Fogarty & Associates, Mark C. Watson and Dennis Scott Zell, Benicia, for Respondents.

GEMELLO, J.

Does a city elections official have authority to refuse to certify an initiative petition based on extrinsic evidence relating to the manner of its circulation? We conclude that she does not, and that an elections official's role in certifying an initiative petition is confined to the ministerial task of examining the four corners of the petition for compliance with submission requirements. Here, a city clerk refused to certify an initiative petition after deciding based on extrinsic evidence that it was circulated in violation of state law. This factfinding exceeded the scope of the clerk's lawful ministerial duties, and the trial court properly issued a writ of mandate directing the clerk to certify the initiative petition. Therefore, we affirm.

Factual and Procedural Background

In June 2001, respondent Alliance for a Better Downtown Millbrae (Alliance) circulated a petition seeking to have the "Downtown Zoning Initiative" (DZI) placed on the Millbrae ballot. If passed, the DZI would have amended Millbrae's zoning ordinance to restrict the density of restaurants, adult businesses, and certain other establishments in a specific section of downtown Millbrae. After obtaining approximately 1,500 signatures, the Alliance submitted the DZI petition (Petition) to the Millbrae City Clerk, appellant Cheryl Wade, for certification of the signatures. It submitted the Petition in sections. Each section consisted of a notice of intention to circulate the Petition, the proposed initiative text, a map of the affected area, and a signature sheet. The signature sheet contained the title and summary of the DZI on the front, along with spaces for three signatures, and spaces for seven signatures and a circulator's declaration on the back.

The city clerk refused to certify the Petition and returned it to the Alliance. In her accompanying letter, she explained that she had determined that the Petition violated state law because (1) it did not include the title and summary of the DZI on every signature page (Elec.Code § 9203, subd. (b))¹ and (2) she believed the notice of intention to circulate the petition and the full text of the DZI had not been circulated with each signature sheet (§§ 9201, 9207).

The Alliance immediately filed for a writ of mandate, and the trial court issued the writ. The trial court concluded that the Alliance had substantially complied with applicable state election law and directed the city clerk to set aside her rejection of the Petition and continue processing it in the manner required by law. In compliance with the writ, the city clerk forwarded the Petition to the San Mateo County Clerk, the custodian of voter registration records, who certified that the Petition contained a sufficient number of valid signatures. Before certifying the Petition to the Millbrae City Council, the city clerk filed a timely notice of appeal.

Discussion

I. The Appeal Is Not Moot

Preliminarily, the Alliance contends that this appeal is moot and that the city clerk has waived her right to appeal. The Alliance bases these arguments on the assertion that the city clerk voluntarily complied with the writ of mandate by forwarding the Petition to the county clerk for verification of signatures. We reject these contentions.

Generally, an appeal will be dismissed as "moot when any ruling by this court can have no practical impact or provide the parties effectual relief. [Citation.]" (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal. App.4th 880, 888, 92 Cal.Rptr.2d 268; see Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132, 41 Cal.Rptr. 468, 396 P.2d 924.) That rule has no application here. This is not a case in which no effective relief can be obtained. The Petition has not been certified to the Millbrae City Council and has not appeared on any ballot. Were we to agree with one or more of the city clerk's contentions and reverse the trial court's judgment, the city clerk would be under no obligation to certify the Petition. This case presents a live, actual controversy.

We likewise dismiss the notion that the city clerk has waived her appeal rights. Alliance's waiver argument rests entirely on City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, 187 Cal.Rptr. 379 (Carmel). In Carmel, the court held that when a government body voluntarily complies with a peremptory writ, it waives its right to appeal those portions of the writ with which it has voluntarily complied. (Id. at p. 970, 187 Cal.Rptr. 379.) Here, the city clerk has forwarded the Petition to the county clerk for verification of signatures but has not certified it to the city council. She has not voluntarily complied in any meaningful way with the trial court's order to accept the Petition as substantially compliant with the state election law. We conclude that no waiver has occurred.

II. Standard of Review

Code of Civil Procedure section 1085, providing for writs of mandate, permits challenges to ministerial acts by local officials. To obtain such a writ, the petitioner must show (1) a clear, present, ministerial duty on the part of the respondent and (2) a correlative clear, present, and beneficial right in the petitioner to the performance of that duty. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540, 28 Cal. Rptr.2d 617, 869 P.2d 1142; County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 972, 84 Cal.Rptr.2d 179.) A ministerial duty is an act that a public officer is obligated to perform in a prescribed manner required by law when a given state of facts exists. (Transdyn/Cresci JV v. City and County of San Francisco (1999) 72 Cal.App.4th 746, 752, 85 Cal.Rptr.2d 512.)

On appeal following a trial court's decision on a petition for a writ of mandate, the reviewing court "`need only review the record to determine whether the trial court's findings are supported by substantial evidence.'" (Lake v. Reed (1997) 16 Cal.4th 448, 457, 65 Cal.Rptr.2d 860, 940 P.2d 311, citing Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10, 93 Cal. Rptr. 234, 481 P.2d 242.) However, we review questions of law independently. (Corrigan v. Zolin (1996) 47 Cal.App.4th 230, 234, 54 Cal.Rptr.2d 634.) Where, as here, the facts are undisputed and the issue involves statutory interpretation, we exercise our independent judgment and review the matter de novo. (International Federation of Professional & Technical Engineers v. City and County of San Francisco (1999) 76 Cal.App.4th 213, 224, 90 Cal.Rptr.2d 186.)

III. The Petition Complies with Section 9203, Subdivision (b)

As a primary reason for rejecting the Petition, the city clerk concluded that it violated section 9203, subdivision (b). The trial court disagreed, finding substantial compliance with the statute. Because there is no dispute over the format of the Petition presented to the city clerk and the issue hinges entirely on the interpretation of section 9203, subdivision (b), we review the matter de novo.

Sections 9200 to 9226 spell out the manner in which the people may exercise their constitutional right to pass city ordinances by initiative. (See Cal. Const., art. II, §§ 8, subd (a), 11, subd. (a).) Under section 9203, subdivision (a), an initiative proponent must submit the proposed measure in advance to an elections official who will forward it to the city attorney. In turn, the city attorney must prepare a title and a true and impartial summary of the proposed measure. Section 9203, subdivision (b) governs placement of the title and summary, and requires that "[t]his title and summary must ... be printed across the top of each page of the [initiative] petition whereon signatures are to appear." In other words, every single petition signature page must include the title and summary of the proposed measure. Here, it is undisputed that each signature sheet contained the title and summary on the front, but not the back. What the statute does not specify, and what we must decide, is whether "each page" means "each side of a sheet of paper" or "each sheet of paper." The city clerk insisted upon the first definition in rejecting the Petition, while the Alliance argued, and the trial court implicitly agreed, that the statute adopts the second definition.

Both the city clerk and the Alliance have requested that we take judicial notice of their respective preferred dictionary definitions for the word "page." We deny these requests as unhelpful to our decision. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, 31 Cal. Rptr.2d 358, 875 P.2d 73.) We take as a given the fact that in common usage the word "page" may refer either to each side of a sheet of paper, or to the sheet of paper as a whole. Which definition is intended in section 9203, subdivision (b) cannot be decided based on the order in which these alternate definitions are listed in one or more dictionaries; it can only be gleaned from context. Considering the use of "page" in context and in light of the evident purposes behind the statutory requirement we conclude that the Legislature intended to require only that a proposed measure's title and summary be printed on every sheet containing signatures, not every side of each sheet of paper containing signatures.

Initiative summaries may be as long as 500 words. (§ 9203, subd. (a).) Consequently, a summary may consume a considerable portion of a side of paper. Here, for instance,...