Songstad v. Superior Court

• Decision Date: 21 November 2001
• Docket Number: No. D038503.,D038503.
• Citation: 93 Cal.App.4th 1202,113 Cal.Rptr.2d 729
• Court: California Court of Appeals Court of Appeals
• Parties: Allan SONGSTAD et al., Petitioners, v. The SUPERIOR COURT of Orange County et al., Respondents; Bruce Nestande et al., Real Parties in Interest.

113 Cal.Rptr.2d 729

93 Cal.App.4th 1202

Allan SONGSTAD et al., Petitioners, v. The SUPERIOR COURT of Orange County et al., Respondents; Bruce Nestande et al., Real Parties in Interest.

No. D038503.

Court of Appeal, Fourth District, Division 1.

November 21, 2001.

As Modified November 26, 2001.

Nossaman, Guthner, Knox & Elliott, Robert D. Thornton, John J. Flynn III, Adam H. Relin, Irvine, Celena H. Chen; Songstad, Randall & Ulich and William D. Coffee, Irvine, for Petitioners Allan Songstad, Bill Campbell, Debbie Cook and Pat Bates.

Songstad, Randall & Ulich and William D. Coffee, Irvine, for Petitioner Mike Alvarez.

Laurence M. Watson, County Counsel, Edward N. Duran, Steven C. Miller and Nicole A. Sims, Deputy County Counsel, for Respondents Laurence M. Watson, County Counsel for the County of Orange and Rosalyn Lever, Registrar of Voters of the County of Orange.

No appearance for Respondent Superior Court of the State of California for the County of Orange.

Strumwasser & Woocher, Fredric D. Woocher and Michael J. Strumwasser, Santa Monica, for Real Parties in Interest.

McDONALD, J.

We here decide whether a voter who opposes a proposed countywide initiative may prevent proponents of that initiative from collecting the signatures needed to qualify it for the ballot based on a contention that the title and summary of the initiative prepared by a county counsel are not impartial or accurate.

I BACKGROUND

Before proponents of a countywide initiative may begin collecting signatures to qualify it for the ballot, the proponents must first file the text of the proposed initiative with the county elections official and request that a ballot "title and summary" be prepared. (Elections Code, § 9103, subd. (a).)¹ County counsel must then prepare a ballot title and summary that express the chief purposes and points of the proposed initiative. (Cf. Lungren v. Superior Court (1996) 48 Cal.App.4th 435, 439-440, 55 Cal.Rptr.2d 690 [construing title and summary requirements for statewide initiatives].) County counsel's title and summary shall "give a true and impartial statement of the purpose of the proposed measure in such language that the ballot title shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure." (§ 9105, subd. (a).) After the county counsel has prepared the title and summary and returned them to the proponents, that title and summary must appear on the petitions the proponents use to collect the signatures necessary to qualify the initiative for the ballot. (§ 9105, subd. (c).)

Petitioners Allan Songstad et al. (Songstad), proponents of an initiative relating to the civilian use of the El Toro Marine Base proposed for placement on the March 2002 ballot for Orange County (the initiative), followed the statutory scheme by submitting the text of the initiative to, and obtaining a title and summary from, the County Counsel for Orange County (County Counsel). Songstad then began collecting signatures on petitions containing the title and summary prepared by County Counsel and text of the initiative to qualify it for the ballot.

Real parties in interest Bruce Nestande and Citizens for Jobs and the Economy (together Nestande) then filed the present lawsuit contending County Counsel's title and summary in the qualification petition were false and misleading, and not impartial. Nestande's lawsuit sought a writ of mandate to require County Counsel to prepare an amended title and summary for the initiative, and to prohibit the Orange County Registrar of Voters from accepting for filing any qualification petition containing the title and summary prepared by County Counsel.

The trial court compared the text of the initiative with the title and summary heard oral argument from the parties, concluded the title and summary were inadequate and misleading, and issued a writ of mandate granting the relief requested by Nestande. Songstad petitioned the appellate court for a writ of mandate to vacate the trial court's order, arguing (1) Nestande did not at the prequalification stage have standing to challenge the title and summary prepared by County Counsel under section 9105, and (2) the trial court's ruling on the substantive validity of County Counsel's title and summary was erroneous. We stayed the trial court's order, issued an order to show cause, and heard oral argument.

We conclude the statutory scheme contemplates that after the county counsel has prepared the title and summary under section 9105, only a proponent of the initiative has standing during the prequalification phase to seek an order requiring the county counsel to amend that title and summary.² Accordingly, the trial court's order is vacated.

II ANALYSIS

A. The Statutory Scheme

The Elections Code contains a comprehensive scheme regulating the process for proposing, qualifying, and conducting an election on countywide initiatives and referenda.³ (Elections Code, Div. 9, Ch. 2, §§ 9100-9190.) Under Article 1 of Chapter 2, proponents of an initiative begin the process by filing with the county elections official a notice of intention, the text of the proposed initiative, and a request that a ballot title and summary be prepared. (§§ 9103, subd. (a), 9104.) Within 15 days after filing these documents, county counsel must prepare and return to the county elections official a ballot title, which may be different from any other proposed title, and a summary of the proposed initiative. The county counsel's title shall "give a true and impartial statement of the purpose of the proposed measure in such language that the ballot title shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure." (§ 9105, subd. (a).) The county elections official must then give the title and summary to the proponents of the initiative, who must place the title and summary in specified places on the petitions that the proponents use to gather signatures of registered voters required to qualify the proposed initiative for the ballot. (§ 9105, subds.(b) and (c).)

Section 9106 provides:

"The proponent may seek a writ of mandate requiring the ballot title or summary prepared by the county counsel to be amended. The court shall expedite hearing on the writ. A peremptory writ of mandate shall be issued only upon clear and convincing proof that the ballot title or summary is false, misleading, or inconsistent with the requirements of Section 9105."

The balance of Article 1 specifies the standards for determining whether the proposed initiative has qualified for the ballot, and some of the preliminary steps to be taken to submit a qualified initiative to the voters. Article 3 describes the steps to be taken after a proposed initiative has qualified for the ballot to obtain the various ballot materials that will accompany the proposed initiative, including an impartial analysis by county counsel and a fiscal impact statement by the county auditor (§ 9160), and arguments for and against the proposed initiative. (§§ 9161-9167.) Article 5 provides for a period of public examination of the official elections materials and specifies in Section 9190 that:

"During the 10-calendar day examination period ..., any voter of the jurisdiction ... may seek a writ of mandate or an injunction requiring any or all of the materials to be amended or deleted. A peremptory writ of mandate or an injunction shall be issued only upon clear and convincing proof that the material in question is false, misleading, or inconsistent with this chapter, and that issuance of the writ or injunction will not substantially interfere with the printing or distribution of official election materials as provided by law...."

We examine in the context of this statutory framework whether persons other than the proponents of an initiative have standing to seek a writ of mandate requiring a county counsel to amend the title and summary prepared under section 9105 for a proposed initiative before the initiative has qualified for the ballot.

B. Standing To Contest the Title and Summary Contained in the Petitions

Section 9106 provides that proponents of an initiative may by petition for writ of mandate seek prequalification judicial review of the initiative's title and summary prepared by a county counsel. Section 9106 does not confer on any other person similar standing to seek that relief. Songstad argues that including only proponents in section 9106 represents a legislative decision that prequalification title and summary challenges may only be brought by proponents. Nestande argues, and the trial court concluded, that section 9106's use of the term "proponent" does not evince a legislative intent to preclude persons other than proponents from filing a prequalification title and summary challenges.

To construe a statute we begin with the probable intent of the Legislature. The goal of statutory interpretation is to "ascertain the intent of the Legislature ... to effectuate the purpose of the law." (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386, 241 Cal.Rptr. 67, 743 P.2d 1323.) "Our first step [in determining the Legislature's intent] is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning." (People v. Valladoli (1996) 13 Cal.4th 590, 597, 54 Cal.Rptr.2d 695, 918 P.2d 999.) We follow the Legislature's intent, as exhibited by the plain meaning of the actual words of the law, "`"whatever may be thought of the wisdom, expediency, or policy of the act."'" (People v. Weidert (1985) 39 Cal.3d 836, 843, 218 Cal.Rptr. 57, 705 P.2d 380, quoting Woodmansee v. Lowery (1959) 167 Cal.App.2d 645, 652, 334 P.2d 991.) Respect for the political branches of our government requires us to interpret the laws in accordance with the expressed intention of the Legislature, and we have "no power to rewrite the statute ... to make it conform to a presumed intention [that] is not...