Duran v. Cassidy

• Decision Date: 08 November 1972
• Citation: 28 Cal.App.3d 574,104 Cal.Rptr. 793
• Court: California Court of Appeals Court of Appeals
• Parties: David O. DURAN et al., Petitioners, v. Ray A. CASSIDY, etc., Respondent. 5 Civ. 1839.

Page 793

104 Cal.Rptr. 793

28 Cal.App.3d 574

David O. DURAN et al., Petitioners, v. Ray A. CASSIDY, etc., Respondent.

5 Civ. 1839.

Court of Appeal, Fifth District, California.

Nov. 8, 1972.

[28 Cal.App.3d 576] Kenneth E. Conn, Visalia, for petitioners.

Richard B. Isham, Visalia, for respondent.

OPINION

FRANSON, Associate Justice. ^*

The dispute centers around the question whether the Plaza Regional Park (sometimes referred to as Visalia Air Park) in the City of Visalia, hereinafter referred to as 'city,' should have an 18-hole golf course. The park encompasses approximately 240 acres of land situated adjacent to the Visalia Airport. The golf course, club house and driving range will take up about 150 acres of the park area.

From a meager record, we have educed the following: For many years the city has contemplated the development of the land to a multiple use regional park. On September 29, 1966, the city council, by resolution, authorized its public service director to apply to the state under the 1964 State Beach, Park, Recreational, and Historical Facilities Bond Act (Pub.Resources Code, § 5096.1, et seq.) for a grant of money with which to develop the park. The written application, dated September 28, 1966, and approved by the city council on September 29, 1966, asked for a grant of $100,000 and specified golf as a proposed use along with other activities. ¹ On October 4, 1966, the Tulare County Board of Supervisors, after reviewing the plans for the park and the city's application for state money, approved the plans and the city's application. The board's approval was apparently necessitated by the fact that the land was located in the unincorporated area of the county, outside of the city limits. On October 26, 1966, the county planning commission, following a staff recommendation that the park should be shown on the county's general plan map and included within the text of the general plan where necessary, recommended an amendment to the general plan (previously adopted by the county in 1964) to include the park as a recreation element. On November 22, 1966, the board of supervisors formally amended the general plan by including the park as a recreation element therein.

The record is silent as to events after November 22, 1966, until August 10, 1967, when the city council authorized its director of public works to execute an agreement with the state for a grant for the park project. Following the execution of the agreement with the state, annexation procedures were commenced, and on December 20, 1967, the city annexed the park land.

The record is again silent as to events which transpired, until November 15, 1971, when the city council approved the following recommendations of its deputy city manager regarding the park:

'1. Council approve Park/Airport master plan.

2. Council establish Project 71--42 and transfer $200,200.00 City funds to construction account.

3. Staff be authorized to accept $22,500 Federal Land and Water Conservation funds and place in Project 71--42 construction account.

4. Staff be authorized to draw from the State Recreation Bond Act the remainder of the City's $100,000 and place in Project 71--42 construction account.

5. Council approve use of city staff and equipment for construction of Regional Park together with such contractors as necessary.'

Following the action of the city council on November 15, 1971, the city commenced construction of the golf course.

Petitioners allege that they are qualified registered electors of the city; that on January 18, 1972, pursuant to the provisions of section 4001 et seq., of the Elections Code of California, they caused to be published a notice of intent to circulate an initiative petition to bar the city from owning and operating a golf course at the park. The petition, addressed to the city council, requested that the proposed ordinance (in the form of a resolution attached to the petition) be passed by the council or be submitted immediately to a vote of the people at a special election. The determinative portion of the resolution provides '. . . be it resolved that the City of Visalia cannot own or operate a golf course at the Plaza Regional Park.' ²

Petitioners allege that the original and additional sections of the initiative petition, in aggregate, contain the signatures of more than 1,500 registered voters of the city and constitute more than 15 per cent of the total registered voters of the city; that on March 10, 1972, the petition was presented to respondent for processing and filing as required by the Elections Code of California, and that he refused to accept the petition.

On March 24, 1972, petitioners filed a petition for writ of mandate in the Superior Court of Tulare County, seeking an order commanding respondent to perform his duties as required by law. On July 24, 1972, a judgment was entered by the superior court, denying a peremptory writ. On August 2, 1972, a petition for writ of mandate was filed in this court.

A threshold question is whether this court should entertain the petition for an extraordinary writ, having in mind that petitioners, at the time of filing their petition in this court, had a remedy by way of appeal from the judgment entered by the superior court. Whether an appeal would be an adequate remedy is a question committed to the sound discretion of this court. (Bruce v. Gregory, 65 Cal.2d 666, 671, 56 Cal.Rptr. 265, 423 P.2d 193; Bayless v. Limber, 26 Cal.App.3d 463, 466, 102 Cal.Rptr. 647.) Since construction of the golf course has commenced (the extent of which is not shown in the record) and may be completed before an appeal can be heard, and because of the importance of having a prompt determination of the right of the people to vote on the initiative measure, assuming that the petition meets the legal requirements precedent to placing it on the ballot, we hold that petitioners' remedy by appeal is inadequate and that the petition for mandate to this court is appropriate. (Code Civ.Proc., § 1086; Farley v. Healey, 67 Cal.2d 325, 327, 62 Cal.Rptr. 26, 431 P.2d 650; Blotter v. Farrell, 42 Cal.2d 804, 812--813, 270 P.2d 481; Bayless v. Limber, Supra, 26 Cal.App.3d at p. 466, 102 Cal.Rptr. 647.)

Respondent's duties with reference to the initiative petition appear to be purely ministerial and involve no discretion on his part.

Article VI, section 1, of the city charter (1969 charter, approved by electors of city at special municipal election on April 14, 1969) provides in part:

'The legislative power of the City of Visalia shall be vested in the people through the initiative and referendum, and in a body to be designated The Council.'

Article XV, section 1, of the charter provides:

'Except insofar as is otherwise provided by ordinances hereinafter enacted, the provisions of the Elections Code of the State of California, as the same now exist or may hereafter be amended, governing the initiative, the referendum and the recall of municipal officers shall apply to the use thereof in the City insofar as the same are not in conflict with this Charter.'

No ordinance has been cited to us which pertains to the initiative power of the people; hence, the provisions of the Elections Code govern. ³ The code sets forth a detailed procedure for processing initiative petitions. The clerk is required to count the number of signatures on the petition, to ascertain from the records of registration whether the petition has been signed by the requisite number of voters, and to certify the results of his examination to the city council at the next regular meeting. If there are insufficient valid signatures on the petition, a supplementary petition bearing new signatures may be filed within 30 days by the proponents. If the petition contains a sufficient number of valid signatures to qualify then the council shall either adopt the ordinance without alteration or immediately order a special election thereon to be held not less than 60 nor more than 75 days thereafter.

In Farley v. Healey (1967) 67 Cal.2d 325 at page 327, 62 Cal.Rptr. 26 at page 27, 431 P.2d 650 at page 651, it is stated:

'. . . the acting registrar of voters exceeded his authority in undertaking to determine whether the proposed initiative was within the power of the electorate to adopt. . . . It is not his function to determine whether a proposed initiative will be valid if enacted or whether a proposed declaration of policy is one to which the initiative may apply. These questions may involve difficult legal issues that only a court can determine. The right to propose initiative measures cannot properly be impeded by a decision of a ministerial officer, even if supported by the advice of the city attorney, that the subject is not appropriate for submission to the voters.'

In Gayle v. Hamm (1972) 25 Cal.App.3d 250 at 255, 101 Cal.Rptr. 628 at 632, it is stated:

'We learn from Farley and McFadden (McFadden v. Jordan, 32 Cal.2d 330, 196 P.2d 787) that: (1) the county clerk's duty in processing the petition for the requisite number of signatures is ministerial, and (2) the court will not interfere with the reserved right of the people to propose legislation absent a 'compelling showing,' i.e., a showing that it is 'clear beyond question' that the proposed ordinance would be invalid even if enacted. In elucidation of the meaning of 'a compelling showing,' the court in Farley stated that such a showing had been made in Riedman v. Brison (1933) 217 Cal. 383, 18 P.2d 947 and Mervynne v. Acker (1961) 189 Cal.App.2d 558, 11 Cal.Rptr. 340. An examination of those two cases shows that determinations of the focal issues necessary to a diposition of those cases had been made previously upon more than one occasion by the Supreme Court. Consequently, the courts considering the petitions for mandamus were able to make the determination that the proposed measure was clearly invalid beyond question, readily and with confidence.'

Under the law...