Pulskamp v. Martinez

• Decision Date: 15 January 1992
• Docket Number: No. B058197,B058197
• Citation: 3 Cal.Rptr.2d 607,2 Cal.App.4th 854
• Court: California Court of Appeals Court of Appeals
• Parties: John J. PULSKAMP, an individual, and Tom Bradley, an individual, Petitioners and Appellants, v. Elias MARTINEZ, City Clerk of the City of Los Angeles, Respondent.

Page 607

3 Cal.Rptr.2d 607

2 Cal.App.4th 854

John J. PULSKAMP, an individual, and Tom Bradley, an individual, Petitioners and Appellants, v. Elias MARTINEZ, City Clerk of the City of Los Angeles, Respondent.

No. B058197.

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

Jan. 15, 1992.

McCambridge, Deixler, Marmaro & Goldberg, Bert H. Deixler and Shinaan S. Krakowsky, Los Angeles, for petitioners and appellants.

Gibson, Dunn & Crutcher, Robert Forgnone, Ginger G. Bauer, and Valerie L. Flores, Los Angeles, for respondent.

NOTT, Associate Justice.

Petitioner Tom Bradley, the mayor of the City of Los Angeles, mistakenly signed an ordinance passed by the city council authorizing a special election to amend the Los Angeles City Charter. Upon discovering his error, the mayor five days later vetoed the legislation. However, respondent Elias Martinez, the city clerk, announced he intended to include the proposed charter amendment on the ballot for the upcoming June 4, 1990 election. Thereafter, the mayor, in his individual capacity, along with petitioner John Pulskamp, a taxpayer, commenced the present action in the superior court for a writ of mandate, seeking to command Martinez to exclude the referendum from the ballot. The trial court denied the petition. The charter amendment was placed on the ballot and was subsequently approved by the electorate. This appeal follows. We affirm.

CONTENTIONS

Petitioners argue the trial court erred by determining (1) that the mayor's signature conclusively evidenced his approval of the ordinance calling for the ballot measure, and (2) that the city clerk could knowingly take advantage of the mayor's mistake. Respondent counters that (1) petitioners lack standing to challenge enacted legislation, (2) the passage of the charter amendment renders the appeal moot, and (3) under the circumstances of this case, any procedural irregularity in the legislative process is beyond the inquiry of the judiciary.

FACTS

On two earlier occasions, once in the mid-1980's and the other as recently as the spring of 1990, Mayor Bradley vetoed ordinances that would have placed on the ballot proposed charter amendments granting the city council the power to review the decisions of the numerous citizen boards and commissions that supervise municipal agencies. The mayor appoints the board and commission members; and up until the instant election, their actions were generally not subject to review by the council.

In February 1991, the city council again began considering whether to pass an ordinance calling for an election to determine if the council should have the power of review over decisions made by the commissions and boards. Learning of the council's action, the mayor instructed his staff to lobby community and business leaders, along with council members, for their support to avoid an override of his future veto. The mayor's opposition to the measure was also widely reported in the press.

On March 6, 1991, the council passed the ordinance (no. 166733) and that same day transmitted the legislation to the office of the mayor's chief administrative assistant, Anton Calleia. Calleia's secretary, though, was unaware of the mayor's objection to the ordinance. She thus prepared the file containing the legislation, as was her custom, by attaching to the folder a summary of the proposed charter amendment and a signature page. She then placed the package on a pile of files on the left hand side of Calleia's desk. The stack of folders eventually grew to be a foot high in size.

Ordinarily, Calleia reviewed each file before forwarding it to the mayor. However, the file containing ordinance no. 166733 was inexplicably taken to the mayor's office without a veto message affixed to it. On March 7, 1991, the mayor signed the measure, although he could not later recall placing his signature on the document or reading its summary. The legislation was then distributed to the custody of the city clerk's office. On March 11, 1991, the city clerk published the ordinance in the Los Angeles Daily Journal newspaper.

The mayor's staff, now cognizant of the mistake, consulted with the city attorney's office for advice. At the direction of the city attorney, Mayor Bradley wrote to the city clerk stating he signed ordinance 166733 in error and desired to have the file returned to his office. On March 12, 1991, the mayor's staff reclaimed the folder and Mayor Bradley later that day issued a veto of the ordinance.

The next day, the city council debated the effect of the mayor's veto and sought an opinion from the city attorney. On March 18, 1991, the city attorney advised the city clerk that absent the mayor's actual approval of the legislation, the ordinance had not been adopted and was of no effect.

The council assembled on March 22, 1991 to consider the mayor's veto. At the meeting, the city attorney opined that the city clerk lacked authorization to place the proposed charter amendment on the ballot unless the mayor's veto was overridden by the council. The council ignored that opinion and passed a motion ordering the city clerk to prepare the proposed charter amendment for the election.

On April 2, 1991, the city attorney advised the city clerk that the latter did not have the authority to include the charter amendment on the ballot without the city council first overriding the mayor's veto. The city clerk thereafter communicated a request to the council that the ordinance be placed on its agenda for a vote to override the veto. The city council, though, chose not to act on the matter.

On April 23, 1991, the mayor and John Pulskamp commenced the present action in superior court. Following the submission of numerous depositions and declarations, the trial court issued a detailed and well-considered 16-page minute order denying the petition. The court stated, in part: "The record demonstrates that the Mayor's signing of Ordinance 166733 was inadvertent, that the Mayor opposed that ordinance, and that the inadvertence was the product of both mistakes by the Mayor's staff assistants and by the Mayor himself.... The court finds that the Mayor's conduct in this respect was negligent, that there has been no adequate showing that it constituted excusable neglect, and that the error was not a mere clerical error in the sense that term is used in the authorities permitting judicial correction of a clerical error in a judgment.... One would have to [not look] at the document at all in order to have a misapprehension about what it was."

DISCUSSION

I. Whether Petitioners Have Standing to Challenge the Charter Amendment

Characterizing the present litigation as an attack on enacted legislation, respondent asserts petitioners have no standing to pursue their claim. Under respondent's view, only the Attorney General can seek to invalidate the charter amendment, on the grounds of legislative irregularities, by commencing a quo warranto action in the name of the People pursuant to Code of Civil Procedure section 803. ¹ We disagree.

An action in the nature of quo warranto is derived from the common law writ used in England by the King's attorney general to test the validity of franchises or claims asserted by subjects of the crown. (International Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687, 695-696, 220 Cal.Rptr. 256, citing High, Extraordinary Legal Remedies (3d ed. 1896) pp. 544-555.) Today, relief traditionally granted by the writ, such as a challenge based on purported irregularities in the legislative process of a charter amendment which has taken effect, must be accomplished through the command of section 803. (Taylor v. Cole (1927) 201 Cal. 327, 333, 257 P. 40; Oakland Municipal Improvement League v. City of Oakland (1972) 23 Cal.App.3d 165, 168-169, 100 Cal.Rptr. 29; County of Santa Clara v. Hayes Co. (1954) 43 Cal.2d 615, 618, 275 P.2d 456; 8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 6, p. 645.)

On the other hand, when an action in quo warranto is not available, a private citizen may proceed to seek relief by other means. In Amer. Distl. Co. v. City Council, Sausalito (1950) 34 Cal.2d 660, 213 P.2d 704, petitioner commenced a mandamus proceeding to compel the city council to terminate its attempt to annex petitioner's property. The California Supreme Court rejected the council's contention that a writ should not be issued because petitioner had a remedy at law. "Quo warranto has been invoked or designated as the appropriate remedy in cases where annexation proceedings have been completed and the municipal corporation or district is exercising control over the territory. [Citations.] But where the annexation proceedings were not completed at the time relief was sought the courts have entertained petitions in mandate or certiorari. [Citations.] It is thus apparent that when the remedy by quo warranto has not matured it is not deemed plain, speedy and adequate for the purpose of controlling the performance of a statutory duty. And since mandate appeared to be the only effective remedy available to the petitioner by which performance of the legal duty could be procured, the trial court did not abuse its discretion in granting the writ." (Id. at p. 667, 213 P.2d 704, emphasis added; see also Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 271-272, 118 Cal.Rptr. 249, 529 P.2d 1017.)

We think it manifest that at the time when petitioners in the case at bar instituted their lawsuit, a quo warranto action by the Attorney General would not have been proper. The city's right to amend its charter had yet to be perfected, for a charter amendment of a city does not take force until filed with the secretary of state. (Cal. Const., art. XI, § 3, subd. (a); see also Taylor v. Cole, supra, 201 Cal. 327, 333, 338, 257 P. 40.)

Furthermore, it must be remembered that for purposes of this appeal, petitioners' right to relief was fixed by the facts existing at the...