Loza v. Panish

• Decision Date: 27 February 1980
• Citation: 102 Cal.App.3d 821,162 Cal.Rptr. 596
• Parties: Stephanie LOZA, Plaintiff and Appellant, v. Leonard PANISH, as Los Angeles County Registrar-Recorder, Defendant and Respondent. Civ. 56355.
• Court: California Court of Appeals Court of Appeals

Page 596

162 Cal.Rptr. 596

102 Cal.App.3d 821

Stephanie LOZA, Plaintiff and Appellant, v. Leonard PANISH, as Los Angeles County Registrar-Recorder, Defendant and Respondent.

Civ. 56355.

Court of Appeal, Second District, Division 2, California.

Feb. 27, 1980.

Rehearing Denied March 26, 1980.

Hearing Denied April 30, 1980.

Gilmartin & Most, Canyon County, for plaintiff and appellant.

John H. Larson, County Counsel, Edward G. Pozorski, Deputy County Counsel, Los Angeles, for defendant and respondent.

ROTH, Presiding Justice.

Appellant sought a writ of mandate pursuant to Elections Code section 10015 ¹ to compel respondent to reject any candidate's statement submitted under Elections Code section 10012 that contains any reference to anything other than the candidate's own "education and qualifications" and particularly any candidate's statement that contains any reference to any opposing candidate. The petition was denied and this appeal ensued. We affirm the trial court's judgment.

Elections Code section 10012 provides in pertinent part that:

"Each candidate for nonpartisan elective office in any local agency, including any city, county, city and county or district, may prepare a candidate's statement on an appropriate form provided by the clerk. Such statement may include the name, age and occupation of the candidate and a brief description of no more than 200 words, of the candidate's education and qualifications expressed by the candidate himself; * * *.

"The clerk shall send to each voter together with the sample ballot, a voter's pamphlet which contains the written statements of each candidate that is prepared pursuant to this section * * *.

"The local agency may estimate the total cost of printing, handling, translating, and mailing the candidate's statements filed pursuant to this section, and may require each candidate filing a statement to pay in advance to the local agency his or her pro rata share as a condition of having his or her statement included in the voter's pamphlet.

"The clerk shall reject any statement, which contains any obscene, vulgar, profane, scandalous, libelous or defamatory matter, or any language which in any way incites, counsels, promotes or advocates hatred, abuse, violence or hostility toward, or which tends to cast ridicule or shame upon any person or group of persons by reason of sex, race, color, religion or manner of worship, or any language or matter the circulation of which through the mails is prohibited by Congress.

"Nothing in this section shall be deemed to make any such statement or the authors thereof free or exempt from any civil or criminal action or penalty because of any false, slanderous or libelous statements offered for printing or contained in the voter's pamphlet. * * *."

The first of appellant's contentions, simply stated, is that the language "Such statement May include the name, age and occupation of the candidate and a brief description * * * of (his) education and qualifications * * * " (emphasis added) is such as to Confine the candidate's statement to such information, and is cast in the permissive rather than mandatory form only to allow one seeking nonpartisan elective office to Omit so much of the enumerated material as is wished not to be disclosed. Respondent, on the other hand, maintains not only that the permissive form is ordinarily and most reasonably understood as being nonrestrictive, but that the admonition found in the section respecting the lack of exemption for civil or criminal actions or penalties arising out of false, slanderous or libelous statements offered in the statement necessarily presupposes the possible inclusion of data not having solely to do with the candidate and that that language would be superfluous otherwise.

We accept appellant's assertion there is no adequate legislative history associated with the statute in question which would itself provide the means for resolution of the parties' respective arguments on this point. That being the case, however, and on the basis of principles of statutory construction sufficiently familiar as to make citation of authority unnecessary, we are disposed to find respondent's position more persuasive and hold accordingly a candidate's statement may include information regarding his qualifications which goes beyond mere personal data respecting his name, age, occupation and education.

In addition to the foregoing, appellant contends respondent must exercise such discretion as is necessary to reject any candidate's statement which contains material prohibited by the terms of the statute as obscene, defamatory or inciting in its character. In testing this suggestion we look no further than the pronouncements of our supreme court found in Wilson v. Superior Court (1975) 13 Cal.3d 652, 119 Cal.Rptr. 468, 532 P.2d 116, that:

"A protective provision more definitive and inclusive than the First Amendment is contained in our state constitutional guarantee of the right of free speech and press. Section 2 of article I of the California Constitution provides, 'Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.' This court's interpretation of the provision is exemplified by the early case of Dailey v. Superior Court (1896) 112 Cal. 94, 44 P. 458, in which we annulled an order restraining the performance of a play relating to a pending trial. In this state we have consistently viewed with great solicitude the right to uninhibited comment on public issues. (See, e. g., Sun Co. of San Bernardino v. Superior Court (1973) 29 Cal.App.3d 815, 105 Cal.Rptr. 873; People v. American Automobile Ins. Co. (1955) 132 Cal.App.2d 317, 282 P.2d 559.)

ZA

" * * * The concept that a statement on a public issue may be suppressed because it is believed by a court to be untrue is entirely inconsistent with constitutional guarantees and raises the spectre of censorship in a most pernicious form.

"Chief Judge Lumbard made this abundantly clear in Crosby v. Bradstreet Company (2d Cir. 1963) 312 F.2d 483, 485, cert. den., 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412, when he held that publication of information about a person, 'without regard to truth, falsity, or defamatory character of that information,' was not subject to prior restraint. Chief Justice Burger in Miami Herald Publishing Co. v. Tornillo, supra, refused to permit governmental interference with a publication's 'content . . . and treatment of public issues and public officials whether fair or unfair . . . .' (418 U.S. (241) at p. 258, 94 S.Ct. (2831), 2840, (41 L.Ed.2d 730 at p. 741).)

"Watson relies upon cases which state that libelous pronouncements are not protected by the United States Constitution (Beauharnais v. Illinois (1952) 343 U.S. 250, 266, 72 S.Ct. 725, (735), 96 L.Ed. 919, (932); Smoot v. Fox (6th Cir. 1965) 353 F.2d 830, 833) and are subject to prior restraint (Anderson v. Dean (N.D.Ga.1973) 354 F.Supp. 639, 642). Whether or not these cases, particularly the latter district court decision, are viable, the rule they purport to invoke is inapplicable here. In New York Times Co. v. Sullivan, supra, 376 U.S. 254, 268, 84 S.Ct. 710, (719), 11 L.Ed.2d 686, (699), the United States Supreme Court distinguished such cases on the ground that they did not involve criticism of the official conduct of public officials. The court held that 'libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.' (376 U.S. at p. 269, 84 S.Ct. at p. 720, (11 L.Ed.2d at p. 700).)

(3) "Watson next asserts that the Near (Near v. Minnesota, 283 U.S. 967, 51 S.Ct. 625, 75 L.Ed. 1357) rationale is inapplicable because the reprinting of newspaper articles does not constitute political discussion. But the mere fact that petitioner chose this type of format, rather than the typical narrative method, to bring his concept of Watson's background to the attention of the voters can have no significant effect upon the status of the articles as a form of political presentation. Indeed, as Chief Justice Hughes wrote in Lovell v. Griffin (1938) 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949, (954). 'The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.' "

(Id., at pp. 658-660, 119 Cal.Rptr. at pp. 472-73, 532 P.2d at pp. 120-21.)

Measured against these standards, we are of the view that portion of Elections Code section 10012 found in its fourth paragraph and which begins "The clerk shall reject" and ends "is prohibited by Congress." is as written violative of constitutional rights of freedom of expression, both federal and state, and that being thus offensive to such safeguards, the portion cannot stand. And this is true in spite of the fact the legislature's action in providing by statute a means whereby political candidates may make themselves known to the voting public may be deemed gratuitous. Having elected to make the candidate's statement available, it must do so subject to constitutional requirements.

The judgment is affirmed.

COMPTON, Associate Justice, concurring.

I concur.

I wish, however, to emphasize that the result is compelled, as Presiding Justice Roth indicates, by the language used in the statute And the lack of any persuasive evidence of the Legislature's actual intent.

Once we have determined, as on this record we must, that the "candidate's statement" is not limited to a recitation of his own qualifications and may contain reference to other matters, it necessarily follows that the Registrar of Voters cannot be constitutionally empowered to determine for himself which matters should or should not be included in the statement.

I suspect that the Legislature, with noble intentions, desired to afford citizens aspiring to non-partisan...