People's Lobby, Inc. v. Board of Supervisors

• Decision Date: 27 February 1973
• Citation: 106 Cal.Rptr. 666,30 Cal.App.3d 869
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE'S LOBBY, INC., and Dorothy Cope, etc., Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF the COUNTY OF SANTA CRUZ, Defendant and Respondent. Civ. 31483.

Page 666

106 Cal.Rptr. 666

30 Cal.App.3d 869

PEOPLE'S LOBBY, INC., and Dorothy Cope, etc., Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF the COUNTY OF SANTA CRUZ, Defendant and Respondent.

Civ. 31483.

Court of Appeal, First District, Division 3, California.

Feb. 27, 1973.

Hearing Denied April 25, 1973.

Roger Jon Diamond, Pacific Palisades, for plaintiffs-appellants.

Howard E. Gawthrop, County Counsel, County of Santa Cruz, Clair A. Carlson, Chief Deputy County Counsel, Santa Cruz, for defendant-respondent.

CALDECOTT, Associate Justice.

This is an appeal from an order of the Superior Court of Santa Cruz County denying a petition for writ of mandate that would have required the respondent Board of Supervisors to place a proposed initiative ordinance on the ballot.

The appellants People's Lobby, Inc., and certain named individuals, circulated a petition entitled 'An Ordinance Protecting the Coastal Environment of Santa Cruz County.' ¹ Sufficient signatures were collected to place the initiative on the ballot and the county clerk so certified. The Board of Supervisors of Santa Cruz County, a general law county, refused to place the initiative on the ballot.

It is the appellants' contention that potential invalidity of an initiative measure is no reason to deny it a place on the ballot and that the proposed initiative could have been denied a place on the ballot only if the governmental entity (speaking through the electorate) had no authority or jurisdiction to enact such a measure. Appellants apparently claim that if the proposed initiative is within the governmental entity's field of authority or jurisdiction, but for other reasons invalid, it should appear on the ballot.

There is considerable confusion as to whether or not a county or municipal official can refuse to place a qualified initiative on the ballot on the grounds that the initiative would be invalid if approved, and whether or not, in pre-election suits, courts have the power to consider the issue of ultimate legal merits. There are cases where the courts have refused to hear the ultimate merits before the election and have ordered the election to be held. This procedure was followed with California Proposition 14 in 1964. (See Mulkey v. Reitman (1966) 64 Cal.2d 529, 50 Cal.Rptr. 881, 413 P.2d 825.) There is language that indicates that the placing of the initiative on the ballot is purely ministerial, with no discretion. (See Farley v. Healey (1967) 67 Cal.2d 325, 62 Cal.Rptr. 26, 431 P.2d 849.) Yet the courts have decided questions of legal merit in suits to force local officials to place a measure on the ballot. (Myers v. Stringham (1925) 195 Cal. 672, 235 P. 448; Riedman v. Brison (1933) 217 Cal. 383, 18 P.2d 947; Wallace v. Board of Supervisors (1934) 2 Cal.2d 109, 39 P.2d 423; Mervynne v. Acker (1961) 189 Cal.App.2d 558, 11 Cal.Rptr. 340; Fletcher v. Porter (1962) 203 Cal.App.2d 313, 21 Cal.Rptr. 452.) One case specifically approved the taxpayers' suit as a method for taking invalid measures off the ballot. (Harnett v. County of Sacramento (1925) 195 Cal. 676, 235 P. 445.)

The controlling Supreme Court case is Farley v. Healey, Supra, 67 Cal.2d 325, 62 Cal.Rptr. 26, 431 P.2d 825. The registrar refused to verify the signatures on the petitions. The court held that the registrar's duties under the San Francisco Charter were purely ministerial, and that he had no authority to refuse to act Unless specifically directed otherwise by a court.

Farley has been interpreted and explained in Gayle v. Hamm (1972) 25 Cal.App.3d 250, 101 Cal.Rptr. 628. In that case the city clerk refused to verify the signatures on an initiative. The court held that under Farley, no court was under a mandatory duty to determine the validity of an initiative in a pre-election proceeding. Even grave doubts as to constitutionality could not compel a court to rule. But where the legal issues were clear and could quickly be determined, the courts could undertake them. In the present case the trial court did undertake to resolve the issues and refused the writ of mandate.

Under the current state of the law, zoning may not be adopted through the initiative. The state law requires the holding of public hearings with public notice. (Cal.Gov.Code, §§ 65803, 65500.) Initiatives are limited generally to the kinds of measures the entity to which they are addressed can adopt. As a local government cannot adopt a zoning ordinance without a notice and hearing, initiatives in the field of zoning are invalid. The requirement that initiatives conform to local government procedure was first adopted with regard to the granting of the right to build and maintain toll bridges. (Galvin v. Board of Supervisors (1925) 195 Cal. 686, 235 P. 450; Newsom v. Board of Supervisors (1928) 205 Cal. 262, 270 P. 676.) Hurst v. City of Burlingame (1929) 207 Cal. 134, 277 P. 308, cited with approval in City of Escondido v. Desert Outdoor Advertising Inc. (1973) Cal., 106 Cal.Rptr. 172, 505 P.2d 1012, was the first case to apply this reasoning to zoning. The case is on all fours with the instant case. The zoning ordinance was adopted by initiative without the necessary hearings and notice. The court held that therefore, the ordinance was invalid.

Both parties ably trace the development of this doctrine in their briefs. The appellant suggests that the rationale for the doctrine is mistaken, and that the law should be changed. This argument however, should be addressed to the Supreme Court. As stated in Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 324, 369 P.2d 937, 940, '(t)he decisions of this court (Supreme Court) are binding upon and must be followed by all the state courts of California.' Though we recognize that the power of the initiative process must be liberally constructed it is questionable whether environmental protection would be advanced by a change in the Hurst rule. Zoning proposals should have the benefit of public hearings and professional study by the local government's planning staff so as to integrate the proposal with the other zoning ordinances and particularly the city or county land use master plan. Overall planning would be seriously crippled if the initiative process could be used in this field.

In the recent case of Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 749, 492 P.2d 1137, 1141, the court held that the Due Process Clause of the Fourteenth Amendment requires that an individual whose property is 'affected by local land use controls' be given the opportunity for a hearing Before he is deprived of any significant property interest. As the proposed initiative ordinance here unquestionably does seek to impose land use control and as there is no opportunity for hearing before it would become effective the measure would clearly be invalid if adopted. Appellants admit that all of the provisions of the measure affect the use of land but claim that it is not a zoning law. This claim however, becomes immaterial under Scott because it is admittedly a land use control measure.

The cases cited by appellants allowing the use of the referendum to repeal a zoning ordinance are of no help. The requirement of notice and hearing is not applicable to a referendum so it can be used in zoning matters.

The recent case of City of Escondido v. Outdoor Advertising, Inc., Supra, Cal., 106 Cal.Rptr. 172, 505 P.2d 1012, limited the constitutional and statutory due process requirements to a proposal that involved a substantial interference with land use and provided that the determination of substantial interference...