Costa v. Superior Court
| Decision Date | 09 August 2005 |
| Docket Number | No. C050297.,C050297. |
| Citation | 131 Cal.App.4th 1105,32 Cal.Rptr.3d 562 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Edward J. COSTA et al., Petitioners, v. SUPERIOR COURT of Sacramento County, Respondent; Bill Lockyer et al., Real Parties in Interest. |
Gibson, Dunn & Crutcher, Daniel M. Kolkey, G. Charles Nierlich, and Rebecca Justice Lazarus, San Francisco, for Petitioners.
No appearance for Respondent.
Bill Lockyer, Attorney General, Richard M. Frank, Chief Deputy Attorney General, Louis R. Mauro, Senior Assistant Attorney General, Christopher E. Krueger, Supervising Attorney General, Leslie R. Lopez, Douglas J. Woods, Zackery P. Morazzini, Vickie P. Whitney, Deputy Attorneys General, for Real Party in Interest Bill Lockyer.
Olson, Hagel & Fishburn, Deborah B. Caplan, Lance H. Olson, Sacramento, and Richard C. Miadich, for Real Party in Interest Californians for Fair Representation—No on 77.
Knox, Lemmon and Anapolsky, Thomas S. Knox, Angela Schrimp De La Vergne, Glen C. Hansen, Sacramento, for Real Party in Interest Bruce McPherson, Secretary of State.
Linda A. Cabatic, Sacramento, for Real Party in Interest Geoff Brandt, Acting State Printer for the State of California.
The petitioners are proponents of a purported initiative measure to amend the provisions of the state Constitution, article XXI, governing the redistricting of California's Senate, Assembly, Congressional, and Board of Equalization districts. The proposal substitutes a three member panel of retired judges for the Legislature as the body to do the redistricting.
The measure was submitted to the Attorney General before circulation (see Elec.Code, § 9002)1 and designated SA2004RF0037. Through the petitioners' negligence, a different version of the measure was printed on petitions and circulated for signatures. The text circulated differs in 17 places from that given the Attorney General, including the Findings and Declarations of Purpose and the time requirements for picking judges who are candidates for the reapportionment panel. (See Appendix 1 to this opinion, post.) Before the discrepancy was discovered, enough signatures were obtained on the circulated petitions to warrant placing an initiative measure on the ballot (see § 9035). We are asked to decide which version, if any, should go on the November 2005 special election ballot.
After petitioners discovered the discrepancy they failed to disclose it to the Secretary of State, Bruce McPherson, until after he had certified the measure as having received sufficient signatures. Petitioners made no public disclosure. Public disclosure was first made by the Attorney General on July 8, 2001.
The respondent Superior Court of Sacramento County issued a judgment prohibiting the Secretary of State from placing either version on the November ballot. The judgment is based on two implicit premises. The first is that the circulated version of the text was not submitted to the Attorney General, in violation of California Constitution, article II, section 10, and section 9002. The second is that the uncirculated version of the text was never "set[] forth" on a petition "certified to have been signed" by the requisite number of electors in violation of California Constitution, article II, section 8. (§ 9035.)
The proponents filed an original petition for writ of mandamus or prohibition in this court to direct the superior court to vacate its judgment prohibiting the Secretary of State from placing the circulated version of the text on the ballot as Proposition 77. We stayed the trial court judgment, issued an alternative writ and set the matter for an expedited hearing.
The state Constitution provides that prior to the circulation of an initiative petition a "copy" of the petition shall be submitted to the Attorney General. (Cal. Const., art. II, § 10(d).) It directs the Legislature to provide the manner in which petitions shall be circulated. (Cal. Const., art. II, § 10(e).)
The Legislature has provided that prior to the circulation of an initiative petition, a draft of the measure shall be submitted to the Attorney General with a request to prepare a title and summary, in 100 words or less, of the chief purpose and points of the measure. (§ 9002.) The proponents shall submit any amendments to the Attorney General and a title and summary of the "final version" of the measure shall be sent to the Secretary of State. (§ 9004.) The title and summary of the final version of the initiative measure shall appear on the top of the petition to be circulated. (§§ 9001, 9004, 9008.) Each section of the circulating petition shall contain a "full and correct copy of the title and text of the proposed measure." (§ 9014.)2 No election official, including the Secretary of State, shall receive or file an initiative petition that has been circulated and is not in conformity with these provisions. (§ 9012.)
The petitioners could easily have avoided or discovered and corrected the problem of different versions before the circulation of the petitions. They and their counsel knew of the problem in May of 2005 but chose not to make any public disclosure and not to inform the Secretary of State until June 13, 2005. This was three days after he had certified the petitions as sufficient to place a reapportionment measure on the November ballot, as Proposition 77. The Secretary of State did so in the belief the measure circulated was the same as that submitted to the Attorney General.
The petitioners contend that they had "no duty" to disclose the discrepancy between the version circulated and the version submitted to the Attorney General. They submit that questioning this nondisclosure is an unjust punishment for their "good deed" of voluntarily informing the Secretary of State about the discrepancy after he certified the petitions.
The petitioners were under a duty to disclose the discrepancies as soon as they learned of them. Their failure so to do deprived the Secretary of State of the opportunity to determine if the petitions should be rejected under section 9012. Their failure to make a public disclosure has tainted, inter alia, the ballot pamphlet review process. At oral argument, they conceded the obvious: they knew that when the matter came to light there would be litigation about the propriety of placing the purported initiative on the ballot. In failing to make prompt disclosure they significantly shortened the period of time available for the judicial resolution of the controversy.
The petitioners concede the circulating petitions violated numerous provisions of the Elections Code, e.g., sections 9001 and 9014. Nonetheless, they contend the text that was circulated should be placed on the ballot, on the ground they substantially complied with the requirements that a proposed measure shall be submitted to the Attorney General before it is circulated. They argue that the sole purpose of the submission is the preparation of a title and summary and that the summary prepared by the Attorney General covers both versions of the initiative and that, in any event, the changes would not have changed the decision of the electors who signed the circulating petition. We disagree.
These are the wrong tests of substantial compliance. Since the summary is directed to the chief points of the initiative it does not cover the means by which the three judge panel is selected. Petitioners' tests would permit any number of changes to matters not within this summary.
Substantial compliance means actual compliance with respect to every reasonable purpose served by the law. The submission of the text of the initiative measure to the Attorney General manifestly serves several purposes. It fixes the content of the text for preparation of the title and summary by the Attorney General. (Cal. Const., art. II, § 10(d), §§ 9001, 9004.) It fixes the content of the text for purposes of review by the public, e.g., to decide whether to sign a circulating petition. (§ 9014.) It fixes the content of the text for consideration by the Legislature for the purpose of public hearings on the subject. (§ 9034.) It fixes the point at which the statute of limitations for circulation of the petition begins to run. (§ 336 [150 days].)
To fix the text of a proposed initiative measure for these purposes the text circulated must be the same text submitted to the Attorney General. That requires, at a minimum, that both must bear the same meaning. The version circulated here undeniably changes the meaning of key provisions in the copy submitted to the Attorney General. It is the elector and not the court, who should determine whether changes of meaning in the text would have changed his or her signature on the petition. To adopt petitioners' test would allow the potential for voter confusion that occurred in this case.
It is inappropriate to postpone determination of the matter until after the election. There is a clear violation of the constitutional and statutory procedures for the circulating of an initiative petition. The Legislature has directed that an initiative petition not be received or filed which is not in conformity with the statutes which govern its submission and circulation. The validity of the procedure used to circulate the measure will become moot if it is placed on the ballot as Proposition 77 and passed by the electorate at the November election. Preelection review is essential to the enforcement of preelection procedures.
Accordingly, we shall deny the petition for a writ of mandate.
Edward J. Costa is the Chief Executive Officer of People's Advocate, Inc., and a proponent of the purported initiative measure. During 2004 he submitted several versions of initiatives to govern redistricting to the Attorney General pursuant to California Constitution, article II, section 10 and section 9002.
Daniel M. Kolkey is an attorney. He was retained to assist in drafting the proposed redistricting...
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