District Election etc. Committee v. O'Connor

Decision Date06 March 1978
Citation144 Cal.Rptr. 442,78 Cal.App.3d 261
PartiesDISTRICT ELECTION OF SUPERVISORS COMMITTEE FOR 5% Et al., Plaintiffs and Respondents, v. Thomas M. O'CONNOR, City Attorney of San Francisco, and Thomas Kearney, Registrar of Voters of San Francisco, Defendants and Appellants. Civ. 40907.
CourtCalifornia Court of Appeals Court of Appeals

Roger H. Bernhardt, Carol R. Silver, San Francisco, for plaintiffs and respondents.

Thomas M. O'Connor, pro se.

James J. Stark, Burk E. Delventhal, Deputy City Attys., San Francisco, for defendants and appellants.

RACANELLI, Presiding Justice.

Defendants and appellants, Thomas M. O'Connor and Thomas Kearney, City Attorney and Registrar of Voters of the City and County of San Francisco, respectively, appeal from a judgment entered on November 4, 1976, granting a preliminary injunction 1 enjoining them from (1) validating no more of the signatures to a proposed initiative measure than five percent of the total votes cast at the last mayoral election, in accordance with the standard provided by section 9.111 of the Charter of the City and County of San Francisco, and (2) refusing to place plaintiffs' and respondents' initiative measure on the November 1976 ballot upon such validation.

Plaintiffs and respondents, an unincorporated association, and certain named resident taxpayers, individually and representatively filed the underlying action for declaratory and injunctive relief seeking to place an initiative measure on the November 1976 general election ballot to amend the Charter of the City and County of San Francisco (hereafter city) to provide for election of its board of supervisors by district. Respondents alleged that the initiative proposal qualified upon obtaining validated signatures equal to five percent of the total votes cast in the city's last mayoral election in accordance with sections 9.108 and 9.111 of the city charter. 2 Appellants in their memorandum of points and authorities in opposition to respondents' motion for a preliminary injunction, contended that the charter amendment process is governed by section 34459 (and related sections) of the Government Code 3 requiring signatures of qualified electors equal to 10 percent of the total votes cast at the last gubernatorial election.

Mootness

At oral argument the parties stipulated that the proposed initiative measure properly qualified for the November 1976 ballot through submission of validated signatures of qualified electors in a number greater than 10 percent as required by Government Code section 34459. The validity of the results of that election is not an issue in this appeal. While the issue is arguably moot in the factual context presented, 4 both sides contend that the question presented is of substantial public interest and should nevertheless be adjudicated. 5 We agree.

"It is now established law that where, as in the case at bench, issues on appeal affect the general public interest and the future rights of the parties, and there is reasonable probability that the same questions will again be litigated and appealed, an appellate court may, although the appeal be subject to dismissal, nevertheless adjudicate the issues involved. (Citations.)" (People v. West Coast Shows, Inc. (1970) 10 Cal.App.3d 462, 468, 89 Cal.Rptr. 290, 295; see also Hardie v. Eu (1976) 18 Cal.3d 371, 379, 134 Cal.Rptr. 201, 556 P.2d 301 (cert. den. 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 360); Johnson v. Hamilton (1975) 15 Cal.3d 461, 465, 541 P.2d 881; Clark v. Patterson (1977) 68 Cal.App.3d 329, 332, 137 Cal.Rptr. 275; Rees v. Layton (1970) 6 Cal.App.3d 815, 819, 86 Cal.Rptr. 268; 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 470, pp. 4426-4427.) Moreover, it further appears that section 34459 of the Government Code has not been previously interpreted and thus presents a question of first impression. We have concluded the issues presented on appeal fall within the public interest exception to the mootness doctrine and are ripe for adjudication. (People v. West Coast Shows, Inc., supra, 10 Cal.App.3d 462, 468, 89 Cal.Rptr. 290; Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716, 87 Cal.Rptr. 348; 6 Witkin, Cal.Procedure, op. cit.) Accordingly, we turn to the merits.

Issue and Contention

It is undisputed that an irreconcilable conflict exists between the provisions of the city charter and Government Code section 34459 et seq. relating to charter amendment procedures. The precise question presented is whether in such circumstances state law governs over conflicting provisions of a chartered city and county.

Appellants contend that prior to the constitutional amendments adopted in 1970 (discussed infra), article XI, section 8, exclusively governed the charter amendment process as a matter of organic state law; that the repeal of section 8 (specifically subd. (h)) was not intended to affect or substantially change matters relating to the distribution of powers between state and local governments, and that the charter amendment process established under the statutory scheme 6 enacted by the Legislature, and effective upon passage of such amendments, manifested an intention to maintain exclusive regulation over the charter amendment process as a matter of statewide concern.

Respondents contend, in essence, that historically the conduct and regulation of municipal affairs, including the election of municipal officers, was exclusively within the power of a city whose charter so provides and controls over conflicting generals laws. Further, that even if Government Code section 34459 applies to chartered cities, the field of regulation was not preempted thereby and less onerous local regulation in the same field is permissible.

We hold for the reasons hereinafter discussed that the regulation of the charter amendment process is a matter of statewide concern governed exclusively by general laws which supersede conflicting provisions in a city and county charter. Accordingly, we conclude that the provisions of the charter (notably §§ 9.108 and 9.111), insofar as they purport to authorize and establish different procedures regulating charter amendments by the initiative process, are invalid; the trial court erred in issuing its preliminary injunction.

Analysis of Constitutional Provisions

We begin our analysis by reviewing relevant provisions of the California Constitution as interpreted in the decisions dealing with regulatory powers conferred and limitations imposed upon a chartered city and city and county.

I. Earlier Provisions: Under the original provisions of the Constitution of 1879, cities were empowered to adopt charters subordinate to the general laws of the state (art. XI, §§ 6 and 8 (1879)). In 1896 the Constitution was amended to provide that city charters adopted pursuant to constitutional authority, "except in municipal affairs," were subject to general laws (art. XI, § 6 (1896)); however, the powers conferred thereunder were special and confined to those enumerated in the charter, the general laws being applicable even as to local matters where the charter was otherwise silent. (See Clouse v. City of San Diego (1911) 159 Cal. 434, 114 P. 573.)

II. 1914 Provisions: The 1914 constitutional amendments effected a major change in the distribution of power between the Legislature and chartered cities. By empowering chartered cities to "make and enforce all laws . . . in respect to municipal affairs, subject only to the (charter) restrictions . . . , and in respect to the other matters they shall be subject to . . . general laws" (art. XI, § 6 (1914)), chartered cities no longer were required to specifically enumerate their powers and through such broad grant of residual powers became freed from general laws dealing with municipal affairs irrespective of whether conflicting state provisions existed. (See Sato, Municipal Affairs in California (1972) 60 Cal.L.Rev. 1055, 1057 (criticizing dictum to the contrary in Bishop v. San Jose, 1 Cal.3d 56, 81 Cal.Rptr. 465, 460 P.2d 137); West Coast Adver. Co. v. San Francisco (1939) 14 Cal.2d 516, 521, 95 P.2d 138.) Section 6 further provided that such chartered cities "may amend their charters in the manner authorized by this Constitution"; section 8 contained detailed provisions affecting charters of cities 7 and cities and counties, including procedures for the amendment of such charters. 8

While a number of amendments were made to article XI over the following years, 9 no basic change occurred in the allocation of such powers. (See Sato, Municipal Affairs in California, supra, 60 Cal.L.Rev. 1055, 1058.) It is clear that prior to the 1970 constitutional revision repealing former article XI, the constitutionally prescribed procedure for amending a city charter was exclusive and controlling over any conflicting provisions in a subordinate city charter. (Uhl v. Collins (1932) 217 Cal. 1, 3, 17 P.2d 99; Garver v. Council of City of Oakland (1929) 96 Cal.App. 560, 274 P. 375; Garver v. Williams (1929) 96 Cal.App. 118, 273 P. 604; see Montgomery v. Board of Admin., etc. (1939) 34 Cal.App.2d 514, 520, 93 P.2d 1046; 34 Cal.Jur.2d, Municipal Corporations, § 52, pp. 159-160, and § 55, p. 657; see also 2 McQuillin, Municipal Corporations (1966 rev. ed.) § 4.97.) Since the allocation of powers effected by the 1914 amendments, the residual authority conferred upon chartered cities was consistently limited to municipal affairs (a limitation retained by the latest amendments; see art. XI, § 5 (1970)). And in exercising the plenary authority conferred by the Constitution in regulating municipal affairs, it is well established that the charter provisions concerning municipal affairs were exclusive and governed over general laws in the same subject-matter area, notwithstanding the absence of a specifically-enumerated power, so long as such power was exercised within the limitations or restrictions imposed by the charter...

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