Referendum Committee v. City of Hermosa Beach

• Decision Date: 08 August 1986
• Docket Number: No. B014109,B014109
• Citation: 229 Cal.Rptr. 51,184 Cal.App.3d 152
• Court: California Court of Appeals Court of Appeals
• Parties: REFERENDUM COMMITTEE OF HERMOSA BEACH, Plaintiff and Respondent, v. CITY OF HERMOSA BEACH, et al., Defendants and Appellants. GREENWOOD/LANGLOIS, Real Party in Interest.

Page 51

229 Cal.Rptr. 51

184 Cal.App.3d 152

REFERENDUM COMMITTEE OF HERMOSA BEACH, Plaintiff and Respondent, v. CITY OF HERMOSA BEACH, et al., Defendants and Appellants GREENWOOD/LANGLOIS, Real Party in Interest.

No. B014109.

Court of Appeal, Second District, Division 4, California.

Aug. 8, 1986.

Review Denied Oct. 23, 1986.

James P. Lough and Ochoa & Sillas, for defendants and appellants.

Manatt, Phelps, Rothenberg, Tunney & Phillips, Robert E. Hinerfeld, John T. Thornton and Kristine Blackwood and Paul J. Hall for real party in interest.

McCLOSKY, Associate Justice.

Defendants City of Hermosa Beach, City Council of the City of Hermosa Beach, Office of the City Clerk of the City of Hermosa Beach, Kathleen Reviczky, City Clerk of the City of Hermosa Beach (collectively city appellants) and real party in interest Greenwood/Langlois (Greenwood), a general partnership, erroneously sued as Greenwood and Langlois, appeal from a judgment dated May 17, 1985, in favor of the plaintiff and respondent Referendum Committee of Hermosa Beach and from a peremptory writ of mandate issued May 17, 1985, commanding Kathleen Reviczky, City Clerk of the City of Hermosa Beach and City of Hermosa Beach not to hold the special initiative municipal election set for June 11, 1985.

CONTENTIONS

City appellants contend that (1) "[t]he plain reading of the initiative article and its underlying purposes require that the initiative election of June 11, 1985 be considered a valid exercise of municipal powers"; (2) "[t]he initiative placed before the voters of the City of Hermosa Beach on June 11, 1985 was not the same ordinance as the one previously subject to the referendum held within the last year"; (3) "[t]he trial court ruled to improperly halt the June 11, 1985 initiative election without a required finding of unconstitutionality or that it was clearly beyond question that the initiative was void"; and (4) "respondents' failure to file a replication to the reply (answer) of appellant require that affirmative allegations be deemed admitted."

Greenwood contends: (1) "The statute prescribing the maximum frequency of special elections for initiatives on the same subject does not pertain to an initiative election following a referendum.... [p] (2) If the statutes are construed as the court below read them, then this Court must determine serious constitutional issues. [p] (3) Sections 4014 and 4057 are constitutionally invalid as construed and applied below, because: (i) these stateutes [sic ] do not facilitate the powers of initiative and referendum but abridge them: one is forfeit when the other is exercised (pages 43-44), and (ii) these statutes discriminate against the voters' power of initiative by subordinating that power to the city council's power to enact legislation, i.e., the City Council could legislate when the voters could not do so by initiative."

Referendum Committee contends that (1) "[t]he initiative Special Election of June 11, 1984 was improperly called. The Elections Code ¹ prohibits an initiative special election from being called, if a referendum special election, ... has been called within the previous 12 months"; (2A) "[t]he trial court's decision prevents the two processes from nullifying each other"; (2B) "[n]either the city council nor the voters could enact an ordinance which is essentially the same as an ordinance repealed by referendum"; and (3) "[t]here was substantial evidence to support the trial court's finding that the initiative placed before the voters was the same ordinance as the one previously subjected to the referendum held within the last year."

STATEMENT OF THE CASE

On April 19, 1985, Referendum Committee filed a complaint against city appellants for declaratory relief, temporary restraining order, preliminary injunction and for writ of mandate, alleging that the City had improperly placed an initiative dealing with City Ordinance No. 85-790 (initiative) on a special election ballot set for June 11, 1985. The Referendum Committee alleged that since that initiative dealt with the same subject matter that had been addressed in a referendum approved by the voters of Hermosa Beach on December 11, 1984, a date less than 12 months before, and the city appellants had thereby violated sections 4014, 4055.

On the same date, April 19, 1985, the Referendum Committee also filed an order to show cause for preliminary injunction as to why a peremptory writ of mandate should not issue and for a temporary restraining order.

The trial court denied Referendum Committee's application for a temporary restraining order, treated the complaint as a petition for a writ of mandate and set a hearing on May 14, 1985, on an order to show cause why a peremptory writ should not issue preventing the proposed special election of June 11, 1985. At the May 14, 1985, hearing the trial court ruled that it would, at that time, consider only the question of the propriety of the special election of June 11, 1985, and the issues relating thereto, severing the issue of another petition filed in the same case.

On April 29, 1985, Greenwood and city appellants filed separate answers to that petition for writ of mandate. The Referendum Committee did not, however, file a replication to the answers filed by Greenwood and the city appellants although all had raised affirmative defenses in their answers, including the defense that the Referendum Committee had failed to exhaust its administrative remedies with the city and was thus barred from prevailing on its petition for a writ preventing the June 11, 1985, election.

Timely notices of appeal were filed on May 17, 1985. The election was held on June 11, 1985. ²

STATEMENT OF FACTS

In July 1984, the City Council of Hermosa Beach, a general law city, enacted an ordinance authorizing the city to enter into a development agreement and ground lease with Greenwood for the construction of a hotel, conference center and parking garage on city owned property in Hermosa Beach.

The Referendum Committee, a group of Hermosa Beach voters, then gathered a sufficient number of signatures and filed a timely referendum petition which suspended the effect of the ordinance.

The City Council of Hermosa Beach thereupon set a special referendum election on December 11, 1984, at which election the voters defeated the ordinance. Greenwood and the city then redesigned the project physically and financially. The city council voted to call a special election on June 11, 1985, asking the voters to decide by initiative whether the city should enter into the revised agreement, with Greenwood required to bear the costs of the election.

On May 14, 1985, the trial court ruled that section 4014, ³ barred the then upcoming election and explained: "I think you have to read all of the code sections in their entirety, and I have no doubt, as a matter of law, that whether it's initiative versus initiative or referendum versus referendum or initiative versus referendum, that the one-year provision does apply."

DISCUSSION

The initiative and referendum powers of the people are reserved to them by the Constitution of the State of California (Cal. Const., art. II, §§ 8, 9 and 11). ⁴ Each allows the voters of the state to bypass the law making power of their elective legislative bodies.

The difference between the two were explained in Whitmore v. Carr (1934) 2 Cal.App.2d 590, 592-593, 38 P.2d 802, as follows:

"This power of referendum is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body, and which, in most cases, would without action on the part of the electors become a law. This power of referendum, as well as that of the initiative, is reserved by section 1 of article IV of the Constitution, to the people of each city and town in the state, ...

"...

"Enactment is not a quality of the referendum. It comes from the exercise of the power of the initiative by the electorate, ... The referendum is limited in its operation to the adoption or rejection of legislation already enacted by a legislative body, and in the absence of such prior enactment there can be neither 'repeal and rejection', to use the terms of the charter provision, nor adoption by the electorate."

The referendum process allows the voters to veto statutes and ordinances enacted by their elected legislative bodies before those laws become effective. (American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 713-714, 206 Cal.Rptr. 89, 686 P.2d 609.) Referenda do not enact law and may not address certain subjects. In contrast, the electorate may legislate on any subject by initiative. (Carlson v. Cory (1983) 139 Cal.App.3d 724, 728, 730-731, 189 Cal.Rptr. 185.)

In the case before us the city council, pursuant to the provisions of section 4017 ⁵ submitted the initiative measure to the voters in a special election scheduled to take place some six months after the voters had, by referendum, rejected the prior ordinance.

Articles I and II of chapter 3 of division 5 of the Elections Code contain the legislation enacted to implement the initiative and referendum processes at the municipal level for general law cities ( §§ 4000-4061). We have already seen that section 4014 provides, in pertinent part, that "the same subject matter shall not be voted upon twice within any 12-month period at a special election under the provisions of this article."

We do not decide whether the trial court was right in holding that the special initiative election dealt with the same subject matter as the special referendum election because we conclude for the reasons stated below that the trial court erred in ordering the issuance of a writ commanding the city appellants not to hold the special election of June 11, 1985.

Does Section 4014 Apply Only to Successive Initiative Elections Held Within 12 months of Each Other?

City appellants contend that section 4014 applies only to initiative special...