Sonoma County Nuclear Free Zone ' v. Superior Court

• Citation: 234 Cal.Rptr. 357,189 Cal.App.3d 167
• Parties: SONOMA COUNTY NUCLEAR FREE ZONE '86 et al., Petitioner, v. SUPERIOR COURT of Sonoma County, Respondent. Eeve LEWIS, Sonoma County Clerk et al., Real Party in Interest. A036119.
• Decision Date: 09 February 1987
• Court: California Court of Appeals

Page 357

234 Cal.Rptr. 357

189 Cal.App.3d 167

SONOMA COUNTY NUCLEAR FREE ZONE '86 et al., Petitioner, v. SUPERIOR COURT of Sonoma County, Respondent Eeve LEWIS, Sonoma County Clerk et al., Real Party in Interest.

A036119.

Court of Appeal, First District, Division 5, California.

Feb. 9, 1987.

Colleen S. O'Neal, Roseland Community Law Office, Santa Rosa, for petitioners Sonoma County Nuclear Free Zone '86 et al.

No appearance for respondent.

James P. Botz, Co. Counsel, Marian E. Moe, Deputy Co. Counsel, Santa Rosa, for real party in interest Eeve T. Lewis.

John M. Kaman, John V. Erickson, Collette & Erickson, San Francisco, for real party in interest Citizens Against the Nuclear Free Zone Initiative.

HANING, Associate Justice.

The proponents of the Sonoma County Nuclear Free Zone Initiative filed this petition for extraordinary relief two months prior to the general election of November 4, 1986. They sought a writ compelling respondent superior court to set aside its peremptory writ of mandate which directed the Sonoma County Clerk (Clerk) to accept for filing ballot arguments against the initiative which had been submitted by Citizens Against Nuclear Free Zone Initiative (Con-NFZ) after the statutory filing deadline had expired. The petition was filed just before the Sonoma County sample ballots were to be delivered to the printer, and requested immediate relief from this court to prevent the printing of the late arguments on the ballot forms.

We concluded the petition raised issues of colorable merit concerning implementation of Elections Code section 3784 and the process of filing ballot arguments for and against county initiatives. ¹ Yet, we were unwilling to interfere with the electoral process by the issuance of an order or writ affecting the ballot printing process. We were likewise disinclined to resolve important legal questions under severe time pressures, when the effect of issuing a writ would have been removal of the arguments against the initiative from the voter's consideration. Although we denied petitioners' request for immediate relief, we issued the alternative writ to resolve important questions of law concerning aspects of the electoral process, questions we considered " 'capable of repetition, yet evading review.' " (Moore v. Ogilvie (1969) 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1, 4.) The occurrence of the November election prior to our resolution of this petition does not render the petition moot. (Ferrara v. Belanger (1976) 18 Cal.3d 253, 259, 133 Cal.Rptr. 849, 555 P.2d 1089; Libertarian Party v. Eu (1978) 83 Cal.App.3d 470, 472, fn. 3, 147 Cal.Rptr. 888; see also Green v. Layton (1975) 14 Cal.3d 922, 925, 123 Cal.Rptr. 97, 538 P.2d 225.) ² Having heard oral argument, we now conclude that the superior court's issuance of the writ against the Clerk was in error.

The Sonoma County Nuclear Free Zone Initiative (NFZI) would have made it illegal in Sonoma County to produce, store, transport, dispose of, process or use any "nuclear weapon or component of a nuclear weapon, enriched nuclear material or radioactive waste." The group supporting the initiative, Sonoma County Nuclear Free Zone '86, along with individual sponsors and proponents of the initiative (referred to collectively as "Pro-NFZ") submitted NFZI and its supporting petitions to the Clerk on June 27, 1986. Pursuant to Elections Code section 3708 the Clerk determined that NFZI was supported by a sufficient number of verified signatures to qualify for the November ballot, and then certified the initiative to the Sonoma County Board of Supervisors (Board). Certification put the Board to the choice of either adopting the initiative as proposed or submitting it to the voters. (§ 3711; see Citizens Against A New Jail v. Board of Supervisors (1976) 63 Cal.App.3d 559, 134 Cal.Rptr. 36.) On August 5, 1986, the Board decided to submit NFZI to the electorate.

The Clerk proceeded to set deadlines for the filing of pro and con ballot arguments pursuant to section 3784, which provides that "[b]ased on the time reasonably necessary to prepare and print the arguments, analysis, and sample ballots and to permit the 10-calendar-day public examination as provided in Article 5 (commencing with Section 3795) for the particular election, the county clerk shall fix and determine a reasonable date prior to the election after which no arguments for or against any county measure may be submitted for printing and distribution to the voters...." Section 3795 provides that the public be able to examine proposed ballot arguments for a 10-day period before their submission to the printer, to enable members of the public to take court action should they consider language of the ballot arguments to be false or misleading. A clerk's deadlines set by this statute must therefore allow for both a reasonable time for printing and the necessary period of public inspection.

After due consideration of the various stages of the printing process and the time to be allotted for proofreading and corrections, the Clerk determined her "absolute printing deadline" would be September 8, 1986. To allow for the 10-day pre-printing period of public examination, the Clerk set August 28, 1986 at 5:00 p.m. as the final deadline for submission of ballot arguments. Since rebuttal arguments must be filed not later than 10 days after the filing of direct arguments (§ 3787), the Clerk set the filing deadlines for direct arguments, pro and con, to be August 18, 1986, and the final deadline of August 28 became the deadline for filing rebuttal arguments.

On August 8, 1986, in accordance with section 3784 and Government Code section 6060, the Clerk published notice of the ballot argument deadlines in the Santa Rosa Press Democrat, a newspaper of general circulation. On August 18, pro-NFZ timely filed its direct pro argument; Con-NFZ did not timely file a direct con argument. A day or two after the deadline. Con-NFZ asked the Clerk if she would accept a late direct argument for filing. She refused, citing section 3784's mandatory proscription against late filings. Four days after the deadline, on August 22, 1986, Con-NFZ filed a petition for peremptory writ of mandate with the Sonoma County Superior Court. The petition named the Clerk, but not Pro-NFZ, as real party in interest. As we will discuss more fully below, Pro-NFZ had no notice of the emergency hearing on Con-NFZ's petition.

Con-NFZ's petition asked the court to order the Clerk to accept its late ballot argument, notwithstanding the mandatory language of section 3784. Con-NFZ contended that the Clerk had a duty under the section to set reasonable deadlines, but had abused that discretion by setting the deadlines so soon after the Board's certification of the initiative. Con-NFZ also contended it had been misinformed by an employee of the Clerk's office, who allegedly told Con-NFZ by telephone that the deadline for filing the direct ballot argument was the 28th, when that in fact was the deadline for rebuttal arguments. Other than section 3784 and other statutes of tangential relevance, the only legal authority cited by Con-NFZ's petition and supporting points and authorities was Ferrara v. Belanger, supra, 18 Cal.3d 253, 133 Cal.Rptr. 849, 555 P.2d 1089, which was cited for the general proposition that the electorate should be fully informed on both pro and con positions on an initiative measure.

At the hearing the superior court made a finding that the ballot printing would not be disrupted by the filing of a late direct argument. The court issued a peremptory writ of mandate directing the Clerk to file the con argument forthwith, and ordered Con-NFZ to serve a copy of its direct argument on Pro-NFZ. A copy of the argument and of the peremptory writ, but not the petition itself, was personally served on a Pro-NFZ representative shortly after the hearing. Because the direct argument cut by 4 days into the 10-day rebuttal period, the court extended the Clerk's deadline for rebuttal an extra day, to August 29, giving Pro-NFZ seven days in which to file a rebuttal argument. Pro-NFZ was able to file its rebuttal argument within the extended period, and was able to successfully prosecute a separate mandamus action under section 3795 to alter language of the argument found false or misleading.

By this petition for writ relief, Pro-NFZ challenges the superior court's authority to issue the peremptory writ against the Clerk. Both Con-NFZ and the Clerk are real parties in interest, the Clerk taking a position harmonious with Pro-NFZ. Our procedural treatment of the petition has been noted. We turn now to the merits of the questions presented. ³

Pro-NFZ first contends that it was real party in interest to the superior court writ proceeding, and the superior court had no authority to issue a peremptory writ of mandate without notice to the real party in interest. We agree.

A petition for writ of mandate must name the real party in interest, who thereafter has a right to notice and to be heard before a trial or appellate court issues a peremptory writ. (Code Civ.Proc., §§ 1088, 1107; 8 Witkin, California Procedure (3d ed. 1985) Extraordinary Writs, § 148, pp. 789-790; § 195, p. 823; Cal.Civil Writs (Cont.Ed.Bar 1970) § 10.18, pp. 194-195; see also Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180, 203 Cal.Rptr. 626, 681 P.2d 893; Cal.Rules of Court, rule 56(a) [both in regard to writs issued by reviewing courts].) "Real party in interest" has been generally defined as "any person or entity whose interest will be directly affected by the proceeding...." (Cal.Civil Writs (Cont.Ed.Bar 1970) § 10.18, p. 194.) While the real party in interest is "usually the other party to the lawsuit or proceeding being challenged" (ibid.), it may be "the person or entity in whose favor the acts complained of operates [sic]" or "anyone having a direct interest in the result" (id., at p. 195), or "the real...