Citizens for Responsible Behavior v. Superior Court

• Decision Date: 17 December 1991
• Docket Number: No. E009929,E009929
• Citation: 2 Cal.Rptr.2d 648,1 Cal.App.4th 1013
• Court: California Court of Appeals Court of Appeals
• Parties: CITIZENS FOR RESPONSIBLE BEHAVIOR, Petitioner, v. SUPERIOR COURT of the State of California for the County of Riverside, Respondent. RIVERSIDE CITY COUNCIL; Frank Johnson, Registrar of Voters; Karen Linquist, City Clerk; Riverside Coalition Against Discrimination; Dr. Francis Carney; and June E. Foreman, Real Parties in Interest.

Page 648

2 Cal.Rptr.2d 648

1 Cal.App.4th 1013

CITIZENS FOR RESPONSIBLE BEHAVIOR, Petitioner, v. SUPERIOR COURT of the State of California for the County of Riverside, Respondent.

RIVERSIDE CITY COUNCIL; Frank Johnson, Registrar of Voters; Karen Linquist, City Clerk; Riverside Coalition Against Discrimination; Dr. Francis Carney; and June E. Foreman, Real Parties in Interest.

No. E009929.

Court of Appeal, Fourth District, Division 2, California.

Dec. 17, 1991.

Rehearing Denied Jan. 15, 1992.

Review Denied March 12, 1992.

Western Center for Law and Religious Freedom and [1 Cal.App.4th 1018] David Llewellyn, Sacramento and Raymond N. Haynes, Moreno Valley, for petitioner.

No appearance, for respondent.

[1 Cal.App.4th 1019] John Woodhead, City Atty., Norman Y. Herring, Chief Asst. City Atty., and Carolyn Confer, Asst. City Atty., Riverside, Lambda Legal Defense and Educ. Fund, Inc., and Mary Newcombe, ACLU Foundation of Southern California and Jon W. Davidson, Los Angeles, and Heller, Ehrman, White & McAuliffe and Clyde J. Wadsworth, San Francisco, for real parties in interest.

OPINION

DABNEY, Acting Presiding Justice.

In this original proceeding we are asked to review the decision of the trial court, upholding the action of real party City of Riverside ("City") in refusing to place a citizens' initiative on the ballot. The trial court ruled that the proposed initiative was constitutionally defective and also represented an impermissible effort to amend the City's charter by ordinance. We agree on both points, and deny the relief requested.

THE INITIATIVE

The initiative in question is entitled "Citizens' Ordinance Pertaining to Homosexuality and AIDS." ¹ The proponent and circulator of the initiative, and petitioner here, is a nonprofit corporation known as Riverside Citizens for Responsible Behavior ("Citizens"). We set out the full text of the initiative in an appendix to this opinion, but its primary provisions are the following:

1) Homosexuality and bisexuality have never been recognized as fundamental human rights by the United States Supreme Court, and the City does not so recognize them.

2) AIDS and its related medical conditions are national and statewide problems and should not be addressed by the City.

3) City shall not enact any policy or law which "defines homosexuality, bisexuality, sexual orientation, affectional preference, or gay or lesbian conduct as a fundamental human right"; "classifies AIDS or homosexuality as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy therefor"; "provides preferential treatment or affirmative action on the basis of sexual orientation or AIDS"; or "promotes, encourages, endorses, legitimizes or justifies homosexuality."

4) The portion of the ordinance set forth in (3), supra, may be affected only by an ordinance adopted pursuant to the initiative procedure.

5) "No City monies may be used directly or indirectly to fund any individual, activity or organization which promotes, encourages, endorses, legitimizes or justifies homosexual conduct."

6) An existing ordinance including sexual orientation as a subject to be addressed by a community relations commission is amended to delete the reference to sexual orientation, and an ordinance banning discrimination against AIDS sufferers in the fields of employment, rental housing, business services, city facilities, city contracts, and educational practices, is repealed.

It is undisputed that the initiative qualified for the general election to be held on November 5, 1991. (See Elec.Code, § 4011.) The City, however, sought legal opinions from law firms practicing in the fields of municipal and constitutional law, as well as from the city attorney's office, all of which concluded that the proposed ordinance was invalid for one or more reasons. As a result, at a City Council meeting held on July 23, 1991, the City refused to place the initiative on the ballot.

On July 31, 1991, Citizens filed a petition for writ of mandate in the Superior Court of Riverside County, seeking to have the City ordered to place the initiative on the November ballot. On the same date, City filed a complaint for declaratory relief, seeking a judgment that its refusal was proper. The two matters were consolidated for hearing and decision. Leave to intervene in the writ proceeding was granted to a group known as the "Riverside Coalition Against Discrimination" and two sponsoring individuals.

After extensive briefing, the court ruled in favor of City and against Citizens on the bases described above. The minute order is dated August 19, 1991.

Citizens filed its petition for a writ of mandate with this court on August 21. In the petition, Citizens requested immediate action by the court, representing that final ballot materials had to be completed for the printer by September 10, 1991. ²

Instead, we elected to set the matter for hearing to permit a reasoned consideration of the issues presented, finding the possible harm from delay less significant than the danger of error due to the compulsion to issue a decision under severe time pressure. ³

I.

A.

Initially, we discuss the general standards under which an initiative measure, otherwise qualified, may be refused a place on the ballot.

In deBottari v. City Council (1985) 171 Cal.App.3d 1204, 217 Cal.Rptr. 790, we recognized that once an initiative measure has qualified for the ballot, the responsible entity or official has a mandatory duty to place it on the ballot. ⁴ (See Elec.Code, §§ 4010-4011; 4055.) However, if the entity or official refuses to do so, this refusal--improper as it is--may be retroactively validated by a judicial declaration that the measure should not be submitted to the voters. In Farley v. Healey (1967) 67 Cal.2d 325, 327, 62 Cal.Rptr. 26, 431 P.2d 650, the Supreme Court confirmed the power of the courts to determine the invalidity of a measure and to direct the appropriate official not to place it on the ballot. As deBottari recognized, even if the local entity usurps the judicial power in this respect, it remains appropriate for the courts to determine whether the result was correct.

B.

The next question is what standard of review is to be employed in reviewing the proposed ordinance prior to the election.

Citizens proposes a standard under which the court should not bar an initiative from the ballot unless there is a "compelling showing" that it is "clearly invalid." These and similar formulations are frequently found in the cases. (See e.g., Legislature v. Deukmeijian (1983) 34 Cal.3d 658, 667, 194 Cal.Rptr. 781, 669 P.2d 17; Farley v. Healey, supra, 67 Cal.2d at p. 327, 62 Cal.Rptr. 26, 431 P.2d 650; Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 12, 244 Cal.Rptr. 581.) This caution is based on the understanding that the right of initiative or referendum is "one of the most precious rights of our democratic process." (Mervynne v. Acker (1961) 189 Cal.App.2d 558, 563, 11 Cal.Rptr. 340.) In a similar vein, the Supreme Court has observed that "it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity. [Citations.]" (Brosnahan v. Eu (1982) 31 Cal.3d 1, 4, 181 Cal.Rptr. 100, 641 P.2d 200; see also Mulkey v. Reitman (1966) 64 Cal.2d 529, 535, 50 Cal.Rptr. 881, 413 P.2d 825, aff'd sub. nom. Reitman v. Mulkey (1967) 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830.)

However, we do not believe that this strict rule is inflexible, nor that it should be. Invalidity, like pregnancy, admits of no half-measures. If an ordinance proposed by initiative is invalid, routine deference to the process will often require the charade of a pointless election.

Where a court is faced with deciding a difficult issue of validity within a few days, it may be prudent to resolve doubtful cases in favor of submitting an initiative to the electorate but we have already expressed our discomfort with the attempt to insist that complex constitutional issues be resolved posthaste. (See American Federation of Labor v. Eu (1984) 36 Cal.3d 687, diss. opn. of Lucas, J., at p. 718, 206 Cal.Rptr. 89, 686 P.2d 609, criticizing pre-election review: "How can this court, already swamped with hundreds of pending cases, expect to reach a reasoned determination of the complex issues presented herein under such adverse circumstances?") In such a situation, post-election review--assuming that the measure in question passes--is certainly preferable, and to deny pre-election relief "without prejudice" in close cases is not an unreasonable approach. It may also be considered that if a measure fails to pass, the issue becomes moot. (See Legislature v. Deukmeijian, supra, 34 Cal.3d at p. 666, 194 Cal.Rptr. 781, 669 P.2d 17; Gayle v. Hamm (1972) 25 Cal.App.3d 250, 257, 101 Cal.Rptr. 628.)

But if the court is convinced, at any time, that a measure is fatally flawed, it should not matter whether that decision is easy or difficult, simple or complicated. Certainly it would be unconscionable for this court, at this time, to rule in favor of petitioner on the basis that the issue is close--only to be faced with a post-election challenge should the measure pass.

C.

We are also aware that there is some dispute over what types of invalidity will justify a pre-election judicial decision to intervene and deny an initiative its place on the ballot. It is clear that a measure may be kept off the ballot if it represents an effort to exercise a power which the electorate does not possess. (See Brosnahan v. Eu, supra, 31 Cal.3d 1, 6, 181 Cal.Rptr. 100, 641 P.2d 200 [conc. & diss. opn. of Mosk, J.]; City and County of San Francisco v. Patterson (1988) 202 Cal.App.3d 95, 99-100, 248 Cal.Rptr. 290.) Citizens argues that pre-election...