Farley v. Healey, S.F. 22567

• Citation: 67 Cal.2d 325,62 Cal.Rptr. 26,431 P.2d 650
• Decision Date: 18 September 1967
• Docket Number: S.F. 22567
• Court: United States State Supreme Court (California)
• Parties: , 431 P.2d 650 Edward J. FARLEY et al., Petitioners, v. Basil HEALEY, as Acting Registrar of Voters et al., Respondents.

Page 26

62 Cal.Rptr. 26

67 Cal.2d 325, 431 P.2d 650

Edward J. FARLEY et al., Petitioners, v. Basil HEALEY, as Acting Registrar of Voters et al., Respondents.

S.F. 22567.

Supreme Court of California In Bank.

Sept. 18, 1967.

Garry, Dreyfus, McTernan & Brotsky, Benjamin Dreyfus and Allan Brotsky, San Francisco, for petitioner.

Marshall W. Krause, M. Lawrence Popofsky and Paul N. Halvonik, San Francisco, as amici curiae on behalf of petitioners.

Thomas M. O'Connor, City Atty., and George E. Krueger, Deputy City Atty., for respondents.

TRAYNOR, Chief Justice.

Petitioners have obtained the signatures of more than 21,000 electors of the City and County of San Francisco to a petition to place an initiative measure on the ballot urging an immediate cease-fire and American withdrawal from Vietnam. Seeking submission of the measure to the voters at the November 7, 1967, municipal election, petitioners tendered the signatures to the acting registrar of voters. On the advice of the city attorney, the acting registrar refused to determine the sufficiency of the signatures to qualify the measure for the ballot. Petitioners then sought a writ of mandate from the superior court. That court denied relief on August 31, 1967. On September 5, petitioners filed a petition for a writ of mandate in this court to compel the acting registrar of voters and the county clerk to determine the sufficiency of the signatures and to place the measure on the ballot.

Petitioners allege that relief must be granted by September 22, 1967, to permit the determination whether they have sufficient signatures to qualify the measure for the ballot. Accordingly, they contend that an appeal from the superior court's order is not an adequate remedy. Under these circumstances they may invoke this court's original jurisdiction to determine their right to submit the proposed initiative to the electorate despite the pendency of the superior court action. (Perry v. Jordan (1949), 34 Cal.2d 87, 90--91, 207 P.2d 47.) ¹

It must be noted at the outset that 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. Under section 180 of the Charter of the City and County of San Francisco, his duty is limited to the ministerial function of ascertaining whether the procedural requirements for submitting an initiative measure have been met. 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. Given compliance with the formal requirements for submitting an initiative, the registrar must place it on the ballot unless he is directed to do otherwise by a court on a compelling showing that a proper case has been established for interfering with the initiative power. (McFadden v. Jordan (1948), 32 Cal.2d 330, 332, 196 P.2d 787.) In Mervynne v. Acker (1961), 189 Cal.App.2d 558, 11 Cal.Rptr. 340, and Riedman v. Brison (1933), 217 Cal. 383, 18 P.2d 947, such a showing was made, and the court therefore had no occasion to consider whether an election offical on his own motion may refuse to submit an initiative measure to the electorate on the ground that it deals with a matter not subject to the initiative. Accordingly, neither case is contrary to our conclusion herein. (See Peterson v. Lamb Rubber Co. (1960), 54 Cal.2d 339, 343, 5 Cal.Rptr. 863, 353 P.2d 575; People v. Banks (1959), 53 Cal.2d 370, 389, 1 Cal.Rptr. 669, 348 P.2d 102.)

Since respondents in the present case, however, have refused to proceed and seriously contend that the proposed measure should not be submitted to the voters, we deem it appropriate to determine whether the charter enables the electorate to adopt it.

The proposed measure is denominated a declaration of policy. It provides that 'It is the policy of the people of the City and County of San Francisco that there be an immediate cease fire and withdrawal of U.S. troops from Vietnam so that the Vietnamese people can settle their own problems.'

Section 179 of the charter provides: 'The registered voters shall have power to propose by petition, and to adopt or reject at the polls, any ordinance, act or other measure which is within the power conferred upon the board of supervisors to enact, or any legislative act which is within the power conferred upon any other board, commission or officer to adopt, or any amendment to the charter. * * *

'Any declaration of policy may be submitted to the electors in the manner provided for the submission of ordinances; and when approved by a majority of the qualified electors voting on said declaration, it shall thereupon be the duty of the board of supervisors to enact an ordinance or ordinances to carry such policies or principles into effect, subject to the referendum provisions of this charter.'

This power of initiative must be liberally construed (Blotter v. Farrell (1959), 42 Cal.2d 804, 809, 270 P.2d 481) to promote the democratic process. (Mervynne v. Acker, supra, 189 Cal.App.2d 558, 563, 11 Cal.Rptr. 340.) Despite this rule of construction and the broad language of the charter, respondents contend that initiative measures cannot be submitted to the electorate unless they concern municipal affairs on which the board of supervisors could enact binding legislation. Section 179, however, is not so limited. It reserves to the people the power to initiate 'any ordinance, act or other measure which is within the power conferred upon the board of supervisors to enact. * * *' As representatives of local communities, boards of supervisors and city councils have traditionally made declarations of policy on matters of concern to the community whether or not they had power to effectuate such declarations by binding legislation. Indeed, one of the purposes of local government is to represent its citizens before the Congress, the Legislature, and administrative agencies in matters over which the lo cal government has no power. Even in matters of foreign policy it is not uncommon for local legislative bodies to make their positions known. By their Resolution No. 341--67, approved June 2, 1967, for example, the San Francisco Board of Supervisors commended President Johnson 'for his stand on the present Arab-Israeli crisis' and urged 'that all necessary action be taken to insure freedom of navigation for all countries in the Gulf of Aqaba.' Pursuant to section 179 the people as well as their elected representatives may adopt such resolutions.

Respondents contend, however, that petitioners' measure is not a 'resolution,' but a 'declaration of policy' governed by the second paragraph of section 179. They urge that only declarations of policy that can be put into effect by ordinances can be adopted by initiative.

The second paragraph of section 179 neither restricts the measures that may be submitted pursuant to the first paragraph nor limits the declarations of policy that it authorizes by its own force. It does not expressly restrict the type of declaration that may be submitted, but instead refers to 'any' declaration. The fact that the board's duty 'to carry * * * into effect' approved policies is inoperative when the policy is beyond the power of the board to effectuate, affords no basis for restricting the right to declare the policy. Only by construing the paragraph narrowly against the power of initiative could it be held that the voters may only declare policies that the supervisors could effectuate by ordinance.

Even under such a narrow construction, however, the proposed initiative is authorized, for the board of supervisors can enact ordinances carrying out the policy of the declaration to express the popular will. The board by ordinance can use the avenues of advocacy available to it to express that will. It can, for example, direct its legislative representative in Washington to make the people's position known, rename streets or buildings, or order the posting of the declaration in public buildings.

The charter contains a numerical requirement as a built-in safeguard against frivolous use of the initiative process. There is no other limitation that prevents petitioners from submitting their measure to a general vote.

Let a peremptory writ of mandate issue directing respondents to determine the sufficiency of the signatures to the petition and, if determined to be sufficient, to place the proposed initiative on the ballot for the municipal election of November 7, 1967. This decision is final forthwith.

PETERS, TOBRINER, MOSK and SULLIVAN, JJ., concur.

BURKE, Justice (dissenting).

I dissent. The obligation imposed upon the judiciary of this country ¹ is to interpret and apply the supreme law, or sovereign will of the people. Under this distinctive American doctrine, termed 'our greatest single contribution to the cause of free government,' the people confided to the courts the responsibility to keep the power of government, national, state and local, by whomsoever exerted within the orbit authoritatively prescribed. (McQuillin, Mun. Corps., 3d ed., § 1.96, pp. 357--358, vol. 1.)

This court's failure to uphold the responsible city officials of the City and County of San Francisco in their refusal to permit the machinery of local municipal elections to be used to legislate ² upon issues exclusively federal in nature is an abdication of that responsibility. ³

The formulation of policy with respect to the war in Vietnam is placed by the federal Constitution within the exclusive jurisdiction of the federal government, in the Congress and the President of...