Gayle v. Hamm

• Decision Date: 28 April 1972
• Citation: 25 Cal.App.3d 250,101 Cal.Rptr. 628
• Court: California Court of Appeals Court of Appeals
• Parties: Mary GAYLE et al., Petitioners and Respondents, v. Robert L. HAMM, County Clerk of the County of Ventura, Defendant and Appellant; COUNTY OF VENTURA, a political subdivision of the State of California, Real Party in Interest and Appellant. Civ. 39089.

Page 628

101 Cal.Rptr. 628

25 Cal.App.3d 250

Mary GAYLE et al., Petitioners and Respondents, v. Robert L. HAMM, County Clerk of the County of Ventura, Defendant and Appellant COUNTY OF VENTURA, a political subdivision of the State of California, Real Party in Interest and Appellant.

Civ. 39089.

Court of Appeal, Second District, Division 5, California.

April 28, 1972.

Edwin M. Osborne, County Counsel, and James T. Ahern, Asst. County Counsel, for Robert L. Hamm, County Clerk of the County of Ventura, and County of Ventura, appellants.

Steven J. Stone, Santa Paula, in pro. per.

Burke, Williams & Sorensen, Royal M. Sorensen, Los Angeles, Edward L. Lascher, Ventura, Siegfried Hesse, Berkeley, Romney, Stone, Smith & Drescher, and Steven J. Stone, Santa Paula, for respondents.

AISO, Associate Justice.

Petitioners Mary Gayle and Steven J. Stone (proponents) filed an initiative petition with defendant ¹ Robert L. Hamm, County Clerk of the County of Ventura (county clerk) pursuant to Elections Code section 3706 on April 12, 1971. Upon advice from the county counsel that the initiative measure (ordinance), even if carried at the polls, would be invalid, the county clerk refused to examine the petition for requisite signatures as prescribed by Elections Code section 3707. Proponents then filed a petition for a writ of mandate in the superior court, on June 23, 1971, to compel the county clerk to examine and process the petition in accordance with said section 3707. Defendant county clerk and the County of Ventura (county) interposed demurrers to the petition on the grounds that it failed to state a cause of action and that there was a defect of parties defendant in failing to name the county as a party. ²

Following a hearing, at which arguments of counsel were heard, the superior court ordered the issuance of a peremptory writ of mandate commanding the county clerk to: (a) count the number of signatures on the initiative petition; (b) ascertain from the records of registration whether said initiative petition is signed by the requisite number of voters; and (c) if he find the signatures to the petition to be sufficient in number, to submit the petition to the Board of Supervisors of the county at their next regular meeting, together with a certificate of the county clerk showing the results of his examination.

Defendants county and county clerk appeal from the foregoing order. They also purport to appeal from certain orders discussed in footnote 3 below.

The substantive issue ³ presented is a narrow one: Where, because of the county counsel's advice that the initiative measure (ordinance), even if carried, would be invalid, a county clerk refuses to examine an initiative petition to ascertain if it has the requisite number of qualified signatures, is the court under a Mandatory duty to determine the validity of the proposed ordinance before issuing a peremptory writ of mandamus to the county clerk to examine the petition and to process the same in accordance with the provisions of Elections Code section 3707? ⁴

We have concluded that under the circumstances of this case, there was no such mandatory duty upon the court, although we recognize that the court in the exercise of its equitable discretion may proceed to make such determination in appropriate instances.

The proposed initiative ordinance in question reads as follows:

'SECTION 1. The County of Ventura shall not own, lease, maintain, nor operate any airport within the boundaries of any incorporated city unless the question of the use of the land proposed to be used as an airport has been submitted to the voters of the City and a majority of those voting on such question have voted in favor thereof. For the purposes of this Section airport shall include any air strip, landing strip, pad, or other facility for the landing or taking off of fixed wing or other aircraft, including helicopters.

'SECTION 2. The County of Ventura shall not own, lease, maintain, nor operate any airport unless the land over which approach and departure zones are established, by the appropriate regularitory (sic) authority, for a distance of not less than 5,000 yards from the boundaries of the airport is zoned and used for other than residential purposes. For the purpose of this Section airport shall include air strip, landing strip, pad or other facility for the landing or taking off of fixed wing aircraft or other aircraft excepting helicopters.

'SECTION 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The people hereby declare that they would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact any section, subsection, sentence, clause, phrase or portion be declared invalid or unconstitutional.

'SECTION 4. This ordinance shall take effect ten days after the date of its adoption.'

The court below refused to determine the validity of the proposed ordinance as requested by defendants. Defendants argue that it placed its refusal to do so upon the ground that it lacked jurisdiction to take up the matter. Our perusal of the record does not so indicate. Rather, it reflects that it was of the view that it was not compelled to do so in this case upon the authority of Farley v. Healey (1967) 67 Cal.2d 325, 327, 62 Cal.Rptr. 26, 28, 431 P.2d 650, 652. The court in Farley stated: 'It is not his (acting registrar of voters under the charter of the City and County of San Francisco) 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.)' (Italics added.) In McFadden, the court granted a writ of mandamus directing the Secretary of State to refrain from certifying an initiative measure to registrars of voters and county clerks because upon examination of the proposed measure, the court found 'it clear beyond question' that the proposed initiative measure was unconstitutional. ⁵

We learn from Farley and McFadden 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 disposition 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. That is not the situation which was posed to the superior court in this case.

To sustain defendants position that the proposed ordinance is invalid, the county counsel advances the following contentions: (1) The proposed initiative ordinance would violate the equal protection clause of the Fourteenth Amendment. (2) It conflicts with laws governing initiative and referendum, because: (a) it binds the legislative power of future boards of supervisors; (b) the location of a county airport is a county and not a municipal matter; and (c) it invades the area of matters administrative rather than legislative. (3) The power vested in the county to own and operate airports has been expressly delegated to and can be exercised only by the board of supervisors. (4) The proposed initiative measure would impair the county's power of eminent domain. (5) It conflicts with the general law exempting the county from municipal building and zoning regulations. (6) It would impair the county's contract obligations. (7) Section 3 of the proposed initiative ordinance (severability provision) is inoperative. We have examined these points raised by the defendants and the authorities they have cited in support. Defendants have cited no binding authority, and our own research to date has disclosed none, of the same dispositive quality as the Supreme Court cases cited in Riedman and in Mervynne which would afford us a simple and speedy determination of the validity issue. Difficult questions of law have been raised at a time when the role of the initiative power must be reassessed in the light of contemporary discontent with representative government, which is claimed to no longer represent the average citizen. The ecological problem of noise pollution created by airports and its hazard to the health of the populace raise new factors of which a court is compelled to take judicial notice.

Even grave doubts as to the constitutionality of an initiative measure do not compel a court to determine its validity prior to its submission to the electorate. (Mulkey v. Reitman (1966) 64...