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. No. 22684
In Bank
Apr. 16, 1970
2 Cal. 3d 448
Robert P. Praetzel, Douglas P. Ferguson and Martin J. Rosen for Plaintiffs and Appellants.
Douglas J. Maloney, County Counsel, Bagley, Bianchi & Sheeks, Bagshaw, Martinelli, Weissich & Jordan, John W. Rosenberg and E. Warren McGuire for Defendants and Respondents and for Interveners and Respondents.
OPINION
McCOMB, J.- 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 elеctors of the county. The petition as filed contained 6,719 signatures. A minimum of 6,090 was required to qualify it.1 Section 5152 of the
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 2,200 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 intervenе 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 the 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 irregularities 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 and 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
The Memorandum Opinion of April 27, 1967, states that the court grouped the disputеd 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 signaturеs 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 chal-
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 defеrring 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.) The sufficiency of the evidence to support the findings is not open to review. (DeVries v. Brumback (1960) 53 Cal.2d 643, 647-648.) 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 wеre duplicates; and that there were no affidavits of circulation whatsoever attesting the validity of 50 signatures. Affidavits of circulation are required (
California Constitution, article IV, section 1, prior to its repeal and reenactment on November 8, 1966 (now art. IV, § 25)4 reserved to the
Facilitating legislation has been enacted by the Legislature, the provisions for initiative and referendum in county elections being provided in
These duties are ministerial but they are not mechanical. They involved more than a computation of the number of signatures. Some
We turn, then, to a consideration of whether errors of law occurred in the mandamus proceedings which require reversal by this court.
Questions: First. Did the court err in accepting the clerk‘s determination that these 94 signatures were invalid?
No. Where the signature on the petition is obviously spurious and is not that of the voter as shown by the registration affidavit, the clerk may and must reject it. He has no discretion to certify a spurious signature. Where there are dissimilarities which are so minor as to mаke the clerk‘s rejection of the signature an unreasonable or arbitrary act, the court may not accept the clerk‘s determination. Where, as here, the dissimilarities are not so minor and the similarities are not so great that only one conclusion can be made as to the validity or invalidity of the signature, and where the court finds that in acting upon these dissimilarities and other indicia the clerk was not acting unreasonably or arbitrarily in finding them spurious, the court must accept the clerk‘s determination. This view of the law does not conflict with the provisions of
No. The exercise of jurisdiction in mandamus rests to a considerable extent in the wise discretion of the court. (Fawkes v. City of Burbank (1922) 188 Cal. 399, 401.) The control of the proceedings rested in its discretion. The minute order of March 14, 1967, indicates that petitioners submitted their cause, and then stated they would present an offer of proof in writing. Minute order of March 21 shows motion by defendant county for judgment; the court‘s statement that it was ready to grant the motion but felt that it should grant petitioners a chance to present their offer of proof; that offer of proof was made; and that petitioners requested permission to reopen the cause to allow thеm to call in all of the 94 persons in the “c” group. The motion was denied on objection by defendant. The court gave petitioners 10 days to further research the authorities, the matter to be submitted at the end of 10 days. There is nothing in the record to show that the court erred in denying the motion to reopen or rejecting the offer of proof.
Petitioners urged before the trial court and on appeal that they had been misled by the trial court into believing that it had approved the 94 signatures, and that the court had reversed its earlier ruling on signature authenticity only after they had rested their case. These contentions are reviewed by the court in its memorandum opinion of April 27, 1967. The court stated therein that throughout the proceedings it had ruled that the clerk‘s judgment in the area of identification must be upheld, even though the court if acting independently might have found the signatures valid, and that the court could not make the determination for the clerk unless it found that he had acted fraudulently or arbitrarily. There is nothing in the record before us to indicate that the parties did not have every opportunity to litigate their objections to the clerk‘s certificate.
Third. Is the ordinance in question subject to referendum proceedings?
Yes. The ordinance was pleaded in full in the petition for writ of mandate. The power of referendum may be invoked only with respect to mаtters which are strictly legislative in character (Johnston v. City of Claremont (1958) 49 Cal.2d 826, 834). It may not be invoked with regard to those matters which are strictly executive or administrative. (Housing Authority v. Superior Court (1950) 35 Cal.2d 550, 557.) This type of ordinance has generally been held to be legislative. (See Hopping v. Council of City of Richmond (1915) 170 Cal. 605, 613-614.) The original ordinance authorized the establishment of “Marincello” as a planned community. The referendum was sought against a subsequent ordinance for the construction of
It is not necessary to here decide whether the court should have heard intervenors’ objections to signatures which had been allowed by the clerk. That issue was removed from the trial by stipulation, not to be heard unless the petition was found to have sufficient signatures to validate it. It was not so found.
Judgment affirmed.
Burke, J., Draper, J.,* and Molinari, J.,* concurred.
MOSK, Acting C. J.--I dissent.
While I agree with the holding that the ordinance in question is subject to referendum proceedings, I dissent from the remainder of the discussion and particularly from the conclusions reached in the majority opinion. The opinion concludes: (1) that the trial court properly upheld the clerk‘s determination that 94 signatures on the referendum petition were invalid because, although the clerk‘s conclusion was arguably incorrect, the similarities of the signatures were not so great or the dissimilarities so minor as to render the clerk‘s rejection unreasonable or arbitrary; and (2) that this is an appeal on a judgment roll and therefore the sufficiency of the evidence to support the findings is not open to review.
As we shall see, these conclusions are incorrect since the law clearly declares that the burden of proof was upon the clerk to establish the signatures were not genuine and it affirmatively appears on the facе of the record that the trial court failed to require the clerk to meet this burden. That the evidence may have been sufficient under the trial court‘s inappropriate standard cannot justify this court in upholding the judgment.
The initiative and referendum are powers reserved to the people, not powers granted to them. (
*Assigned by the Chairman of the Judicial Council.
Consistent with this long-prevailing policy the
The majority opinion, in holding that the clerk has met his burden by a bare assertion of the invalidity of the signatures and a showing that his conclusion was not unreasonable or arbitrary, eviscerates the presumption of validity which should be accorded to the signatures. It is not surprising that no authority is cited in the opinion for this startling inversion of legislative intent, for the cases have stated or held not only that the burden of demonstrating the invalidity of signatures on a petition is upon the person protesting their genuineness but also that it is for the trial court rather than the clerk to determine whether the signatures are genuine. Thus it has been said that the question whether fraud has been committed is not for the clerk but for a court of equity in appropriate proceedings. (Ley v. Dominguez (1931) supra, 212 Cal. 587, 602; Williams v. Gill (1924) 65 Cal.App. 129, 132.)
In recognition of this rule a number of cases have held that the trial court must take evidence and make findings of fact upon the question whether signatures on a petition are genuine. (See, e.g., Ratto v. Board of Trustees
The wisdom of these rules is graphically illustrated by the circumstances of the present case. The clerk initially disqualified the 94 signatures in issue on grounds other than the genuineness of the signatures. When the trial court held that the grounds of disqualification were improper, the clerk then stated that he would hаve refused to certify the signatures as valid in any event because a comparison of each signature on the petition with the registration affidavit of the voter indicated to him that the signer of the petition was not the voter in question. Although the judge disagreed with this conclusion, he indicated he had no power to substitute his opinion for that of the clerk since the similarities were not so great or the dissimilarities so minor as to render the clerk‘s determination unreasonable or arbitrary.
No evidence aside from the opinion of the clerk or his deputies was introduced at the trial to support his conclusion. No attempt was made to contact the signatories to determine if they had in fact signed the petition for the purpose of disproving their signatures at the trial. In other words, the clerk‘s burden of proof was held by the trial court to be satisfied by his ipse dixit statement that the signatures were not genuine.
Justification for requiring the clerk to prove the invalidity of the signatures is supported by the unlikelihood under the circumstances of the present case that the signatures were forged. The documents contained in the record show that the signatures in question appear at random on numerous petitions circulated by a large number of persons. Each circulator attached an affidavit asserting upon information and belief that the signa-
It must be remembered that the
As we have seen, the clerk is enjoined to perform his duties in such a manner as will, whenever possible, protect rather than defeat the right of the people to exercise their referendary power. (Ley v. Dominguez (1931) supra, 212 Cal. 587, 602.) He must consider that the signing of a petition is not accomplished with the same formalities as the attestation of a will. It was said in Chester v. Hall (1921) 55 Cal.App. 611, 617, “Those who circulate the petition will necessarily be drawn from the
The trial court‘s error in the present case was compounded by its refusal to permit petitioners to produce evidence that the signatures were genuine. Leaving aside for the moment the question whether petitioners should have been barred from introducing such evidence because they did not promptly assert their desire to do so,5 the court did not reject the offer of proof because it was tardy. The record establishes that petitioners attempted to introduce affidavits of the signatories attesting to the genuineness of the signatures and also offered to introduce testimonial evidence to the same effect. In its memorandum opinion the trial court indicated that the rejection of this offer was based on the court‘s conclusion that such evidence was irrelevant in view of the clerk‘s determination that the signatures were forgeries.6 A clearer violation of a voter‘s right to exercise the power of referendum reserved to him under the Constitution is difficult to conceive.
One other matter should be noted. The clerk contends that if the trial court must go beyond a determination of whether he acted reasonably, courts will be burdened with an incredibly complex and time-consuming task since a referendum petition could contain hundreds of thousands of
Under existing law, as the majority opinion admits (ante, p. 456), the clerk‘s determination as to the sufficiency of a petition is not conclusive and may be challenged and reviewed by a court in a mandamus proceeding. The instant case is probably a fairly typical illustration of proceedings when the clerk‘s factual determination is challenged. Here the clerk initially disqualified 944 signatures out of 6,719. Of these, petitioners concеded that 474 were properly disallowed and the clerk conceded that he had erred as to 42 signatures which he should have allowed. A considerable body of case law has evolved in California on the question whether various defects in referendum petitions justify the clerk‘s refusal to validate signatures thereon. For example, in Ley v. Dominguez (1931) supra, 212 Cal. 587, 597, it was held that the failure by a signer to insert a precinct number after his name did not invalidate his signature and in Chester v. Hall (1921) supra, 55 Cal.App. 611, 618-619, it was held that the absence of a date after the signature did not disqualify the signature. The clerk restored over 200 signatures after the standards set forth in these and other cases were applied by the court.
This left only 233 signatures in question and of these 108 were invalidated because of asserted duplication of names and the absence of a circulator‘s affidavit. Only 125 were rejected because the signatures were assertedly not genuine.7 Thus, ultimately, over 98 percent of the signatures on the petition were either found to be sufficient before trial or were restored during trial by the concession of the parties or the application of established rules.
In these 125 individual instances, we do not face difficult evidentiary situations in which the signers of a document are deceased or otherwise unavailable and the genuineness of signatures must be proved by others. Here the voters who signed the petitions are alive and well, and anxious to affirm the exercise of their referendum rights by sworn testimony that each in fact personally signed the petitions in question, but they are restrained from doing so only because a county official is of the opinion from a comparison of signatures with the affidavits of registration that the signatures were forged. This incomprehensible result can only chill the faith of registered voters in the rationality of the democratic process.
I would reverse the judgment.
Peters, J., and Sullivan, J., concurred.
Appellants’ petition for a rehearing was denied May 21, 1970. Draper, J.,* sat in place of Tobriner, J., who deemed himself disqualified. Peters, J., Mosk, J., and Sullivan, J., were of the opinion that the petition should be granted.
*Assigned by the Chairman of the Judicial Council.