Barnes v. Wong

• Decision Date: 23 March 1995
• Docket Number: No. A067227,A067227
• Citation: 39 Cal.Rptr.2d 417,33 Cal.App.4th 390
• Court: California Court of Appeals Court of Appeals
• Parties: Robert BARNES, Plaintiff and Respondent, v. Germaine Q. WONG, as Registrar of Voters, etc., Defendant and Appellant.

Page 417

39 Cal.Rptr.2d 417

33 Cal.App.4th 390

Robert BARNES, Plaintiff and Respondent, v. Germaine Q. WONG, as Registrar of Voters, etc., Defendant and Appellant.

No. A067227.

Court of Appeal, First District, Division 4, California.

March 23, 1995.

Louise H. Renne, City Atty., Burk E. Delventhal, Randy Riddle, Julia A. Moll, Deputy City Attys., San Francisco, for defendant and appellant.

Robert Barnes, San Francisco, for plaintiff and respondent.

ANDERSON, Presiding Justice.

Does mandamus lie to compel a registrar of voters to accept for filing a ballot argument that a voter tried to file more than five hours after the widely-publicized filing deadline? Invoking, among other things, the public interest in providing voters with a balanced statement of positions on the proposed ballot measure, the superior court concluded it did and commanded Germaine Q. Wong, the Registrar of Voters for the City and County of San Francisco (City), to accept the late filing and include it in the voter information pamphlet. She did; the election has since come and gone. We decide the merits of the appeal because the public interest in the proper administration of preelection procedures is substantial as is the probability that the issue will surface again. (Mann v. Superior Court (1986) 181 Cal.App.3d 372, 374, 226 Cal.Rptr. 263; Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th 141, 147-148, 16 Cal.Rptr.2d 408.)

I. BACKGROUND

A. General

Under our state constitution, chartered cities such as San Francisco look to their charters, rather than the general law, as the source of authority for procedures governing submission of ballot arguments. (California Constitution, article II, section 11 and article XI, section 5; Gebert v. Patterson (1986) 186 Cal.App.3d 868, 872, fn. 2, 231 Cal.Rptr. 150.) Accordingly, the San Francisco Charter empowers the Board of Supervisors (Board) to provide, by ordinance, for the format of ballot pamphlets and the submission, review, selection, printing and inclusion of ballot arguments. (San Francisco Charter, section 9.112.) Pursuant to the constitution and the authority given to the Board under section 9.112 of the San Francisco Charter, the Board adopted San Francisco Administrative Code section 5.74.1 et seq. which governs ballot arguments and procedures for submission and publication of ballot arguments.

These regulations set forth a priority scheme for determining the one argument for and against a given measure that will be printed in the voter pamphlet free of charge (S.F. Admin. Code, §§ 5.74.4, 5.74.5) and further provide for the publication of additional arguments for or against a measure upon timely (1) deposit of a fee sufficient to defray the full cost of printing or (2) submission of signatures in lieu of the fee (id., §§ 5.74.8, 5.74.9).

Upon selection of the official argument of the proponent and opponent, the Registrar of Voters must "send copies of both to the persons whose arguments have been selected." These authors can then submit rebuttal arguments. (Id., § 5.74.6.)

The deadline for submitting the official proponent's and opponent's arguments is "not later than noon of the 77th day prior to the election." (S.F. Admin.Code, § 5.74.3.) For the November 8, 1994 general election, that deadline was noon on Tuesday, August 23. The deadline for rebuttal and paid arguments is no later than noon of the 70th day prior to the election, or August 30 in the case at hand.

Arguments prepared and submitted in compliance with these provisions are placed in the voters pamphlet (Id., § 5.77.1), which is printed and mailed to approximately 450,000 San Francisco voters.

B. The Proposition K Ballot Argument

Respondent Robert Barnes was the community outreach director for the "No on K" Committee formed to oppose Proposition K, a measure put to the San Francisco voters on November 8, 1994, which would have changed the laws regulating collection of garbage and recycling. At approximately 5 p.m. on August 23rd, Barnes presented for filing his opposition argument to Proposition K. He mistakenly believed the deadline was noon the next day. He had relied on a sign posted in the Registrar of Voters Office regarding the public inspection of voter pamphlets which listed the inspection period for proponent's and opponent's arguments as commencing Wednesday, August 24th. ¹ Registrar Wong explained she could not accept the argument because the deadline had passed.

Barnes immediately filed a petition for emergency peremptory writ of mandate on August 24. In his points and authorities Barnes argued Registrar Wong was estopped from rejecting his papers because the public inspection sign was misleading. He further argued he substantially complied with the law.

Opposing the petition, Registrar Wong, who had held that office since August 1989, related that her office undertook a number of steps to educate the public about the ballot process, including publication of a guide for submitting arguments on San Francisco ballot measures which Barnes acknowledged receiving. The guide repeatedly set forth the applicable deadlines. Additionally, the Registrar of Voters Office conducted "brown bag" lunch sessions for those interested in submitting ballot arguments.

Wong further declared that she adhered to a strict and consistent policy of enforcing the various deadlines imposed on candidates and others for filing documents in her office. In virtually every election she was asked to make exceptions to the deadlines and in each instance the person presented what he or she considered a good faith reason why the exception should be allowed. However, in her view, the only way to treat everyone fairly and equally is to consistently apply the rules, which means relying upon and enforcing deadlines.

Wong's predecessors followed the same policy, rejecting, among other things, the nomination papers of former Board of Education member Ben Tom, former Lieutenant Governor Leo McCarthy's sponsor certificate on behalf of supervisorial candidate Angela Alioto, and an opposition argument to a Charter amendment which a labor organization sought to submit after the deadline.

The trial court ordered that a peremptory writ of mandate issue directing Registrar Wong to accept for filing Barnes' argument in opposition to Proposition K. In so ruling the court found "that the Registrar acted properly in strictly enforcing the deadline imposed by section 5.74.3, and that the sign the Registrar of Voters had posted in her office, entitled 'Public Inspection of Voter Pamphlet,' was not misleading as to the noon August 23rd deadline for filing proponents' and opponents' arguments. Nonetheless, given that Petitioner's proposed argument was submitted on the same date that it was due and five hours beyond the deadline as the result of a good faith misunderstanding, and was available in the Registrar's office for public review prior to the time that the file was opened for public examination, and that Real-Party-in Interest has had an opportunity to review Petitioner's argument in opposition, and that no other official argument against Proposition K was submitted, and that this Court has determined that there is an overriding public interest in providing San Francisco voters with a balanced and informative statement of the conflicting positions concerning the advisability of adopting the ballot measure, this Court concludes that the peremptory writ of mandate should issue." The Registrar petitioned this court unsuccessfully for a writ of mandate; this appeal followed.

II. DISCUSSION

A writ of mandate will lie "to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled...." (Code Civ.Proc., § 1085.) The two requirements for mandamus thus are (1) a clear, present and usually ministerial duty on the part of the respondent and (2) a clear, present and beneficial right in the petitioner to performance of that duty. (Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th 791, 796, 21 Cal.Rptr.2d 779.) And, while mandamus is not available to control the discretion exercised by a public official or board, it is available to correct an abuse of discretion by such party. (Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 344, 124 Cal.Rptr. 513, 540 P.2d 609.)

The City contends the court erred in issuing the writ because no ministerial duty existed on the part of Registrar Wong to accept the late papers. We agree.

The duty of the Registrar, as set down in the San Francisco Administrative Code, was to accept ballot arguments filed no later than noon on August 23rd. The ordinance is clear: the arguments "must be submitted " not later than the time and date set forth therein. (Italics added.) Sonoma County Nuclear Free Zone '86 v. Superior Court (1987) 189 Cal.App.3d 167, 234 Cal.Rptr. 357, speaks aptly to the inappropriate use of mandamus in a similar context. There, the trial court directed the county clerk to accept a late-filed argument against a local initiative. Under Elections Code section 3784, the clerk must "fix...