Clark v. Patterson

• Citation: 137 Cal.Rptr. 275,68 Cal.App.3d 329
• Court: California Court of Appeals
• Decision Date: 23 March 1977
• Parties: William S. CLARK et al., Plaintiffs and Appellants, v. Jay PATTERSON et al., Defendants and Respondents. IBEW, Local 6; Transport Workers Union, Local 250A, et al., Intervenors, Laborers International Union, Local 261 et al., Intervenors. Civ. 39469.

Page 275

137 Cal.Rptr. 275

68 Cal.App.3d 329

William S. CLARK et al., Plaintiffs and Appellants, v. Jay PATTERSON et al., Defendants and Respondents IBEW, Local 6; Transport Workers Union, Local 250A, et al., Intervenors Laborers International Union, Local 261 et al., Intervenors.

Civ. 39469.

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

March 23, 1977.

Hearing Denied May 19, 1977.

Dobbs, Doyle & Nielsen, James R. Parrinello, San Francisco, Thomas H. Crawford, San Francisco, for plaintiffs and appellants.

Thomas M. O'Connor, City Atty., James J. Stark, Burk E. Delventhal, Deputy City Attys., San Francisco, for defendants and respondents.

Jerome M. Garchik, Neyhart & Anderson, San Francisco, Brundage, Beeson & Pappy, Los Angeles, for intervenors.

TAYLOR, Presiding Judge.

W. S. Clark and several other taxpayers (hereafter taxpayers) and voters of the City and County of San Francisco (hereafter City), appeal from an order dated May 13, 1976, denying their petition for a writ of mandate. They contend that the removal of two propositions by Patterson, acting registrar of voters (hereinafter registrar), from the June 8, 1976, primary election ballot, at the direction of the City's governing body prior to the election, was improper and violated the integrity of the electoral process. Although the particular election is past, the precise legal questions presented are matters of first impression, which are of continuing public interest, are likely to recur in future elections and, accordingly, are not moot (Hardie v. Eu, 18 Cal.3d 371, 379, 134 Cal.Rptr. 201, 556 P.2d 301; Knoll v. Davidson, 12 Cal.3d 335, 344, 116 Cal.Rptr. 97, 525 P.2d 1273; Green v. Superior Court,10 Cal.3d 616, fn. 6, at p. 622, 111 Cal.Rptr. 704, 517 P.2d 1168). For the reasons set forth below, we disagree with the contentions of the taxpayers and affirm the order.

The parties agree that the pertinent facts are accurately summarized by the taxpayers' opening brief, as follows: On March 8, 1976, the City's governing body, the board of supervisors (hereafter Board), culminated a month of public debate concerning the right of City employees to strike by unanimously voting to place a proposed charter amendment, Proposition E, on the June 8, 1976, primary election ballot; this measure prescribed disciplinary action against striking employees.

On April 15, 1976, in the midst of a prolonged public employees' strike, eight members of the Board invoked their initiative powers, pursuant to the City charter, to submit to the voters a proposed ordinance change, Proposition K, on the June 8, 1976, primary election ballot; this measure permitted the Board to adopt a two-year compensation schedule for specified City employees.

Prior to May 8, 1976, Propositions E and K were included in the City voter handbook, printed on absentee ballots, and printed on sample ballots. In addition, taxpayers expended approximately $1,000 for campaigns in support of Propositions E and K, including the printing in the voter handbook of an argument in support of Proposition E.

On Saturday, May 8, 1976, a majority of the Board entered into an agreement with representatives of the striking employees to facilitate a strike moratorium. Partial consideration for the agreement was the promise of the Board members to withdraw Propositions E and K from the June 8, 1976, ballot. By resolution, approved by eight members of the Board, the registrar was directed to withdraw Proposition E from the ballot. Simultaneously, the same eight members of the Board sent a letter to the registrar requesting that their names be withdrawn from the initiative ordinance placing Proposition K on the ballot.

The following day, Sunday, May 9, the taxpayers initiated the instant proceedings to prevent the registrar from taking any action to prevent the voters from casting votes on Propositions E and K. On Monday, May 10, 1976, at 8 a.m., absentee voters began to cast votes on Propositions E and K. On May 12, 1976, the court granted the petition to intervene of several labor organizations that represented the City's employees with regard to wages, hours and conditions of employment (hereafter intervenors). On May 13, 1976, the court denied the taxpayers' petition for a writ of mandate and thereafter the absentee votes on the two propositions were not counted, and the two measures were not submitted to the voters at the primary election of June 8, 1976. This appeal was filed on May 14, 1976. ¹

The record indicates that Proposition E, a proposed charter amendment, was approved by the City's Board by a unanimous vote at the Board's regularly convened meeting on March 8, 1976, pursuant to Government Code section 34459 (set forth, so far as pertinent, below). ² Proposition K, a proposed initiative ordinance, was placed on the ballot by the signing of a petition of eight board members, pursuant to section 9.108 of the City charter (likewise set forth below, so far as pertinent). ³

Thus, it is readily apparent that none of the specific provisions (quoted below) pursuant to which the Board formulated and placed the two propositions on the ballot discuss the procedure for, and proper timing of, the Board's withdrawal of propositions.

The first question presented is whether the Board, after deciding to submit Propositions E and K to the electorate, can subsequently rescind its action. While there is no authority precisely in point, we agree with the court below that the guiding principle is stated in McConoughey v. Jackson, 101 Cal. 265, 35 P. 863. McConoughey held that '. . . the legislative department of a municipal corporation . . . may at any time before the rights of third persons have vested, if consistent with the law of its creation and its rules of action, rescind previous votes and orders.' It seems self-evident that this rule of law merely enunciates what common sense dictates. Legislative bodies, no less than private individuals or commercial entities, require a measure of flexibility in their dealings and transactions. They, acting as representatives of the people, must have the ability to undo what they have done, given compelling circumstances.

Accordingly, we conclude that the Board here had an implied power to withdraw Propositions E and K from the ballot. ⁴ We believe that such an implied power is necessary, as a Board action which was reasonable and necessary when taken, may become unnecessary and harmful by the time of the election for reasons not readily apparent to the electorate.

The taxpayers, however, maintain that in the withdrawal of Proposition E, the charter amendment, the Board did not follow its own procedures, as the withdrawal constituted a 'legislative action,' taken pursuant to section 2.300 of the City charter. ⁵ That charter provision states, so far as pertinent: 'Action by the board of supervisors shall be by ordinance or resolution in writing introduced by a member or by a committee of said board and passed or adopted by a majority of all the members of the board at each reading. Every legislative act shall be by ordinance.' The section then spells out the specific procedures for the passage of ordinances that the taxpayers claim were not followed in the withdrawal of Proposition E.

We find persuasive the City's contention that the term 'legislative act,' as used in section 2.300 of the charter, refers only to ordinances or resolutions that must be submitted to the Mayor, who may either veto or approve them. In contrast, proposals (like Proposition E) submitted to the voters by the Board become effective immediately, and the Mayor has no power either to repeal or sign such a submission.

Furthermore, we do not think that the charter could require the motions of the Board for the submission of proposed charter amendments and ordinances to the voters to be first sent to the Mayor for his action, since the procedure for amending charters originally was specified in the state Constitution and then moved to Government Code section 34459. We think the statute containing the language previously found in the Constitution exclusive and controlling. Statutes not inconsistent with constitutional provisions are given binding and co-equal effect (cf. Uhl v. Collins, 217 Cal. 1, 17 P.2d 99; Garver v. Council of City of Oakland, 96 Cal.App. 560, 274 P. 375). ⁶

Furthermore, section 13 of article XI of the Constitution, as revised in 1970, and so far as here pertinent, provides: 'The provisions of Sections 1(b) (except for the second sentence), 3(a), 4, and 5 of this Article relating to matters affecting the distribution of powers between the Legislature and cities and counties, including matters affecting supersession, shall be construed as a restatement of all related provisions of the Constitution in effect immediately prior to the effective date of this amendment, and as making no substantive change.'

'The terms general law, general laws, and laws, as used in this Article, shall be construed as a continuation and restatement of those terms as used in the Constitution in effect immediately prior to the effective date of this amendment, and not as effecting a change in meaning.'

A fair reading of Government Code section 34459 compels the conclusion that the Board is vested with the power 'on its own motion' to submit proposed charter amendments to the electorate for its approval or disapproval. We can only conclude that the submission of Proposition E by the Board was not a legislative action, within the meaning of charter section 2.300. Our conclusion is further reinforced by the fact that there is no mention anywhere in the charter of the constitutional power of the Board to submit proposed charter amendments to the voters.

The taxpayers' contention has even less merit as to the Board's initiative process used for Proposition K. As to the question here presented, we see no difference between E and K. The taxpayers' attempts to analogize the Board's...