Wheelright v. County of Marin

• Decision Date: 16 April 1970
• Docket Number: S.F. 22684
• Citation: 85 Cal.Rptr. 809,467 P.2d 537,2 Cal.3d 448
• Court: California Supreme Court
• Parties: , 467 P.2d 537 George W. WHEELRIGHT et al., Plaintiffs and Appellants, v. COUNTY OF MARIN et al., Defendants and Respondents; Gulf Oil Corporation of California et al., Interveners and Respondents.

Page 809

85 Cal.Rptr. 809

2 Cal.3d 448, 467 P.2d 537

George W. WHEELRIGHT et al., Plaintiffs and Appellants, v. COUNTY OF MARIN et al., Defendants and Respondents Gulf Oil Corporation of California et al., Interveners and Respondents.

S.F. 22684.

Supreme Court of California In Bank.

April 16, 1970.

Rehearing Denied May 21, 1970.

Robert P. Praetzel, San Rafael, Douglas P. Ferguson and Martin J. Rosen, San Francisco, for plaintiffs and appellants.

Douglas J. Maloney, County Counsel, Bagley, Bianchi & Sheeks, Bagshaw, Martinelli, Weissich & Jordan, John W. rosenberg and E. Warren McGuire, San Rafael, for defendants and respondents, and for interveners and respondents.

McCOMB, Justice.

This is a judgment roll appeal from a judgment denying a peremptory writ of mandamus and discharging the alternative writ theretofore issued.

Petitioners, registered voters of the county of Marin, on behalf of themselves and others similarly situated sought a writ of mandate to compel the county clerk to certify that a referendum petition had attached to it the requisite number of signatures of registered, qualified electors of the county. The petition as filed contained 6719 signatures. A minimum of 6090 was required to qualify it. ¹ Section 5152 of the Elections Code requires that within ten days from the date of filing the petition the clerk shall examine it, ascertain whether or not it is signed by the requisite number of voters and attach his certificate showing the result of his examination. The clerk's certificate showed only 5774 qualified signatures. Petitioners alleged that the clerk had rejected, for reasons unknown to them, 944 signatures of duly registered and qualified voters of the county and that the clerk had wrongfully and unlawfully certified to the board of supervisors that a legally deficient number had signed the petition.

The referendum petition protested the adoption of Ordinance No. 1507, approved by the board of supervisors of Marin County on April 12, 1966. In 1965 the county had by ordinance rezoned 2200 acres of land to P--C (planned community) and by resolution of the board had adopted a Master Plan for the development of this community to be known as 'Marincello.' Under Marin County Code section 22.44.040 the board and the planning commission were required to approve a precise development plan for any land improvement within the planned community. Ordinance No. 1507 approved a precise development plan for the construction of the Tennessee Valley access road into Marincello. The owners and developers were allowed to intervene as defendants in this proceeding. Their answer alleged that there were an additional 934 signatures on the petition which should not have been allowed by he clerk. During the proceeding they raised the objection that this ordinance related only to administrative duties of the board and was not subject to referendum. The parties by stipulation agreed that, pending determination of the validity of the rejected signatures, the court should not determine whether the ordinance was subject to referendum proceedings or whether some of the allowed signatures contained irregularites which would compel their disallowance.

The transcript indicates that the hearings took several weeks; that witnesses were called and examined; that the court ordered the production of all registration cards and that it examined each of the signatures on the petition together with the corresponding signatures on registration cards; that the legal issues were extensively briefed; and that there were frequent colloquies between court and counsel. In its Memorandum nd Minute Order of January 11, 1967, the court stated that it considered the first problem which it must consider in reviewing the clerk's action was whether he had correctly applied the law; the second problem was the question of identification, i.e., was there sufficient similarity between the signature on the petition and that on the registration card to enable the Clerk, acting as a reasonable person, to determine that the signer was the registered voter in question. The clerk's judgment in this area of identification must be respected, the court stated, unless it appeared that the clerk rejected a signature for some fancied dissimilarity and 'the Court must not seek to make the identification for him. I believe this to be the approach to be taken in this case regardless of whether the pleadings contain particular semantic formulas relating to alleged fraud or arbitrary or capricious action.'

The Memorandum Opinion of April 27, 1967, states that the court grouped the disputed signatures into four general categories, a to d. The 'c' group contained 94, each of which had been rejected by the clerk initially for reasons which the court found did not constitute a proper basis for disqualification. At the hearing the clerk testified that he nevertheless would have rejected each of these on the ground that a comparison of the handwriting on the petition with that on the registration affidavit left him unsatisfied that the petition was in fact signed by the voter. He testified that in each case he was convinced because of the handwriting dissimilarity that the signature on the petition was not that of the voter in question. The court examined each of these signatures and stated that there were sufficient similarities so that it would be reasonable to conclude that the same person had signed the petition; and that if the court were checking signatures it would resolve such doubt as did exist in favor of the validity of the signature, if it had the power to substitute its judgment for that of the clerk. It determined that it had no such power, unless the similarities were so great or the dissimilarities so minor as to make the clerk's rejection unreasonable or arbitrary.

The clerk rejected 58 names as duplicates. The Memorandum Opinion indicates that petitioners had testified that they had carefully checked the petition and could not find the claimed duplicates, that the clerk had testified as to the procedures employed by his office to discover duplications, and that it was a question 'which side the court believes made the more accurate check.'

Findings of Fact and Conclusions of Law were filed September 5, 1967. The court found that petitioners had conceded at the trial that 474 signatures were properly disallowed; and that the clerk had restored at the trial 238 signatures originally disallowed by him. ² These findings are not challenged on this appeal. The court found that 233 signatures were properly rejected by the clerk for the following reasons: 58 were duplicates; 94 had handwriting dissimilarities and that there was difference of opinion between the clerk and the court on these, but that the clerk's rejection thereof was not unreasonable or arbitrary ³; 31 had handwriting dissimilarities, and the court agreed with the clerk's determination; and on 50 'no affidavits of circulation whatsoever attested their validity.' The petition was found to be signed by not more than 6012 voters. The court found that at all times mentioned the clerk acted in good faith, in an honest, fair and reasonable manner, and in no instance could any of his actions be deemed arbitrary or capricious.

On this appeal petitioners urge that the court erred as a matter of law in deferring to the clerk's opinion that 94 signatures were not authentic and that 58 signatures were duplicates, and in deferring to his 'improper rejection of petitions containing valid signatures because of some alleged defect in the circulator's affidavit.'

In a judgment roll appeal every presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it. (Johnson v. Hayes Cal. Builders, Inc. (1963) 60 Cal.2d 572, 578, 35 Cal.Rptr. 618, 387 P.2d 394.) The sufficiency of the evidence to support the findings is not open to review. (De Vries v. Brumback (1960) 53 Cal.2d 643, 647--648, 2 Cal.Rptr. 764, 349 P.2d 532.) It must therefore be presumed that the evidence was sufficient to support the findings that as to the 94 signatures in the 'c' group the similarities were not so great, and the dissimilarities were not so minor as to make the clerk's rejection unreasonable or arbitrary; that 58 signatures were duplicates; and that there were no affidavits of circulation whatsoever attesting the validity of 50 signatures. Affidavits of circulation are required (Elec.Code, § 3701; former Cal.Const., art. IV, § 1).

California Constitution, article IV, section 1, prior to its repeal and reenactment on November 8, 1966 (now art. IV, § 25) ⁴ reserved to the people the power of the initiative and the referendum and specifically reserved such powers to the electors of each county 'to be exercised under such procedure as may be provided by law.' This section was declared to be self-executing, 'but legislation may be enacted to facilitate its operation, but in no way limiting or restricting either the provisions of this section or the powers herein reserved.' It requires that each section of a petition have attached to it the affidavit of the person soliciting signatures to the same, stating his own qualifications, and stating that all of the signatures to the attached section were made in his presence, and that to the best of his knowledge and belief each such signature is the genuine signature of the person whose name it purports to be, and no other affidavit thereto shall be required. The affidavit must be verified. The petitions so verified 'shall be prima facie evidence that the signatures thereon are genuine and that the persons signing the same are qualified electors. Unless and until it be otherwise proven upon official investigation, it shall be presumed that the petition presented contains the signatures of the requisite number of qualified electors.'

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