Preserve Shorecliff Home. v. San Clemente

• Decision Date: 16 January 2008
• Docket Number: No. G038649.,G038649.
• Citation: 158 Cal.App.4th 1427,71 Cal.Rptr.3d 332
• Parties: PRESERVE SHORECLIFF HOMEOWNERS, Plaintiff and Appellant, v. CITY OF SAN CLEMENTE et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

71 Cal.Rptr.3d 332

158 Cal.App.4th 1427

PRESERVE SHORECLIFF HOMEOWNERS, Plaintiff and Appellant, v. CITY OF SAN CLEMENTE et al., Defendants and Respondents.

No. G038649.

Court of Appeal, Fourth District, Division 3.

January 16, 2008.

The Sutton Law Firm, James R. Sutton, Santa Maria, and Gabe Camarillo, for Plaintiff and Appellant.

Strumwasser & Woocher, Frederic D. Woocher, Michael J. Strumwasser and Bryce A. Gee, Santa Monica, for Defendant and Respondent San Clemente Residents for Responsible Government.

Rutan & Tucker, Jeffrey M. Oderman and Noam Duzman, Costa Mesa, for Defendant

and Respondent City of San Clemente.

Benjamin P. de Mayo, County Counsel and Wendy J. Phillips, Deputy County Counsel, for Respondent Neal Kelley, Orange County Registrar of Voters.

OPINION

SILLS, P.J.

California has two statutes requiring that all circulators of referendum petitions be qualified to register to vote in the city whose ordinance is the object of the referendum—Elections Code, section 9238, subdivision (c)¹ and section 9209.² In this case involving a challenge to signatures on a referendum petition obtained by a group seeking to have a referendum on an ordinance restricting second-story additions, the trial court:

—(a) found that section 9238, subdivision (c) (and, by implication, section 9209 as well) had indeed been violated, but

—(b) did not invalidate the petition, thus allowing the referendum election to go forward.

The anti-referendum group has appealed, arguing that by allowing the referendum to go forward, the trial court "voided" these statutes.

We affirm. It turns out that the trial court merely "voided" statutes that are unconstitutional anyway.

I. BACKGROUND

On July 26, 2006 the San Clemente City Council enacted an ordinance (Ordinance 1319) prohibiting second-story additions in a section of the city known as "Shorecliffs." Opponents of the ordinance—we will call them "the pro-referendum group"³—hired a professional signature gathering firm⁴ to obtain the signatures of the minimum 10 percent of registered voters in the city necessary to subject the new ordinance to a referendum,⁵ which in this case was 3,727 signatures. The gathering firm obtained the necessary number by late August 2006—obtaining over 3,900 signatures on the referendum petition.

However, the gathering firm employed a peculiar methodology to avoid section 9238, subdivision (c)'s requirement that circulators of a referendum petition be eligible to vote in the city. Specifically, the circulators hired by the signature gathering firm had each petition signer also sign a separate "Declaration of Circulator" portion of the petition, the idea being that each petition signer was his or her own "circulator."

In September, proponents of the anti-second story ordinance—that is, the opponents of the referendum on the ordinance, we will call them "the anti-referendum group"⁶—filed this action. They sought a writ of mandate directing the city clerk to certify the referendum as in sufficient, or, alternatively, directing the city council not to place the referendum on the ballot.

Their main theory for their request for writ of mandate was that section 9209 (read together with section 9022) requires that circulators be residents of the cities whose ordinances are the subject of referendum petitions, and that the circulators used by the pro-referendum group here were not residents of San Clemente. Section 9209, like section 9238, requires a circulator to declare that he or she is a resident of the relevant city;⁷ section 9022 requires that circulators be qualified to vote in the state.⁸ Section 9238, subdivision (c), which is the focus of the anti-referendum group's appellate argument, is not to be found in the group's trial court petition. That fact is interesting given that in 1999, California's Attorney General concluded that section 9209 is constitutional in its restriction of circulators to the relevant city, though the Attorney's General's opinion does not mention 9238. (See 82 Ops.Cal.Atty.Gen 250 (1999).) In short, the verified petition was predicated on a statute that had already been opined to be unconstitutional by the Attorney General.

No one in this case contends that sufficient numbers of petition signatures had been gathered by employees of the professional signature gathering company who, by coincidence, also happened to be eligible to vote in San Clemente, so that the referendum could make it onto the ballot on the strength of those signatures alone.

The ease was heard in February 2007. The issue of the constitutionality of section 9238, subdivision (c) was not raised. The omission was ironic, since it was the anti-referendum group (represented then by different counsel) who, in their verified petition for a writ of mandate, first cited the United States Supreme Court opinion that must be the basis of any constitutional challenge to section 9238, subdivision (c) (or to section 9209), Buckley v. American Constitutional Law Foundation (1999) 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599. The pro-referendum group also submitted evidence that city clerks in various areas around the state have routinely allowed signers of petitions to "witness their own signatures by signing again in the `Declaration of Circulator' portion of the petition." (And indeed, in this appeal, both the city and the Orange County Registrar of Voters have filed briefs taking no position on the validity of the process used by the signature gathering company.)

The trial court took the matter under submission, and in mid-April the court ruled in a minute order. (The minute order was not a formal statement of decision, but rather as a series of formal written responses to a joint list of controverted issues.)

In his written responses, the trial judge determined that the process of deeming every signer to be his or her own circulator violated section 9238, subdivision (c). However, the trial judge also ruled that since the city clerk had determined that there were a sufficient number of qualified signatures to put the referendum on the ballot, under Truman v. Royer (1961) 189 Cal.App.2d 240, 11 Cal.Rptr. 159, the city clerk was required to certify the referendum. Moreover, the trial court specifically held that, "Assuming a violation of the Elections Code," disqualification of the petition was not the proper remedy. Reasoning that the "requirements" of section 9238, subdivision (c) "are for the benefit and convenience of the clerk," the court concluded that if the clerk found that the "signatures were genuine, then the petition is sufficient."

Section 9209 was not mentioned. (The statute, which had featured so prominently in the verified petition of the anti-referendum group was not mentioned at, all in the group's trial brief.) Nor were any of the statutes (specifically sections 104 and 9022) that simply provide for circulator declarations in the first place. (Neither of those statutes were mentioned in the anti-referendum group's trial brief either.)

A judgment declaring the referendum petition valid was entered in May. The anti-referendum group promptly filed this appeal, asserting that the trial court's failure to stop the election in effect "voided" section 9238.

II. CONSIDERATION OF CONSTITUTIONALITY FOR THE FIRST TIME ON APPEAL

The anti-referendum group argues that this court should not consider at all the question of the constitutionality of section 9238, subdivision (c), because the issue was not raised by the pro-referendum group at trial. The argument is not well taken.

Appellate courts have discretion to consider the constitutionality of a statute for the first time on appeal when the question involves "`a pure question of law which is presented by undisputed facts.'" (People v. Hines (1997) 15 Cal.4th 997, 1061, 64 Cal.Rptr.2d 594, 938 P.2d 388; e.g., People v. Blanco (1992) 10 Cal. App.4th 1167, 1173, 13 Cal.Rptr.2d 176 [exercising discretion to consider, for the first time on appeal, constitutionality of evidentiary statute involving character trait].)

Indeed, appellate courts "typically have engaged" in the discretionary review of otherwise forfeited arguments when—albeit only when—the "claim involves an important issue of constitutional law or a substantial right." (In re Sheena K. (2007) 40 Cal.4th 875, 887, in. 7, 55 Cal.Rptr.3d 716, 153 P.3d 282 [collecting authorities in context of discussion of whether condition of probation was unconstitutional on its face]; Hale v. Morgan (1978) 22 Cal.3d 388, 394, 149 Cal.Rptr. 375, 584 P.2d 512 [considering for first time on appeal constitutional validity of statute assessing penalty against landlord for depriving tenant of utility services for purpose of eviction]; e.g., Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 5-6, 97 Cal.Rptr. 431 [considering for first time on appeal whether forestry statute was constitutional in light of impact of timber and logging operations on state as a whole]; see also Alfaro v. Terhune (2002) 98 Cal. App.4th 492, 512, 120 Cal.Rptr.2d 197 ["claim that including inmates under a sentence of death within" certain legislation was "unconstitutional on its face" was "question of law"]; Thain v. City of Palo Alto (1962) 207 Cal.App.2d 173, 24 Cal. Rptr. 515 ["However the question of the validity and constitutionality of the ordinance, on its face, including its notice provisions, is one of law."].)

The anti-referendum group posits three areas, or questions, where consideration of the constitutionality of section 9238, subdivision (c) would "require the Court to decide the issue without crucial evidence," that is, evidence that should have been presented to the trial court, but wasn't. The three questions are: (1) "whether any of the paid signature gatherers ... were actual residents of San Clemente"; "(2) whether the circulator declaration requirement under EC section 9238(c) imposed any significant burden on the circulators and...