Opinion
As Amended on Denial of Rehearing June 13, 1969.
For Opinion on Hearing, see 85 Cal.Rptr. 809, 467 P.2d 537. Martin J. Rosen, San Francisco, Robert P. Praetzel, San Rafael, Douglas P. Ferguson, San Francisco, for appellants.
Douglas J. Maloney, County Counsel of County of Marin, San Rafael, for respondents Marin Conty, etc.
E. Warren McGuire, Bagshaw, Martinelli, Weissich & Jordan, San Rafael, for intervenors.
CHRISTIAN, Associate Justice.
Plaintiffs, who are all registered voters in Marin County, appeal from a judgment denying mandate to compel respondent county clerk to certify to the Board of Supervisors a referendum petition. The petition, if valid, would require the board to repeal or submit to referendum election an ordinance approving certain plans involved in a proposed real estate development. Upon inspection of the petition and its accompanying signatures, the county clerk certified that the petition did not contain sufficient valid signatures.
The trial court denied the writ of mandate, after a lengthy trial. At the last gubernatoral election, 60,901 persons voted in Marin County; therefore 6,090 valid signatures were necessary to qualify the petition (Elections Code, § 3752). The petition contained 6,719 purported signatures; the disallowance of 474 was conceded by all parties to have been proper. Of the signatures originally disallowed by the clerk, 238 were reinstated by him and accepted by the court in the course of the trial. The clerk continued to maintain that the remaining 233 signatures which he had originally disallowed were invalid for the following reasons: duplicated signatures (58); dissimilarity in handwriting between signature on petition and that on registration card (125); lack of any affidavit of circulation accompanying certain signatures (50). The trial court upheld the rejection of these 233 signatures. The court thus ruled that the clerk was correct in determining that the petition bears only 6,012 valid signatures: 5,774 originally certified by the clerk plus 238 accepted by the clerk during the trial. That number is 78 short of the necessary 6,090 valid signatures.
Election Code, § 3701.
Appellants contend that the trial judge applied an incorrect standard in reviewing the clerk's disallowance of signatures for alleged duplication or dissimilarity of handwriting. It is argued that the court ought to have determined for itself the va lidity County referendum powers are to be exercised 'under procedure that the Legislature shall provide.' (Cal.Const., art. IV, § 25.) Section 3707 of the Elections Code, which governs the certification of referendum petitions (Elections Code, § 3754), provides in part: 'the county clerk shall examine the petition, and from the records of registration ascertain whether or not the petition is signed by the requisite number of voters.' This function of the clerk is also referred to in section 46 of the Elections Code: 'Wherever, by the Constitution or laws of this State, the county clerk is required to determine what number of voters have signed any petition or paper, the petition or paper, when filed with the officer, shall have designated therein the name or number of the respective precinct in which each of the signers reside[s]. The county clerk shall determine that fact with respect to the purported signature of any voter from his original affidavit of registration current and in effect on the date indicated as the time of signing.'
The trial judge indicated that he would upset the clerk's determination only if he found that the clerk had acted unreasonably or arbitrarily; he considered it his duty to defer to the clerk's judgment even where his own conclusion as to authenticity was to the contrary. Conceding that this is the correct standard to be applied by the court in reviewing the ministerial actions of the county clerk (Ley v. Dominguez (1931) 212 Cal. 587, 299 P. 713, Reites v. Wilkerson (1950) 95 Cal.App.2d 827, 828-829, 213 P.2d 773, 223 P.2d 48), appellants contend that the handwriting analysis done by the clerk in this case was not within the scope of his authority under the above-cited statutes, and that the court should have exercised independent judgment on the matters before it.
The first question is whether sections 46 and 3754 (quoted above) authorized the clerk to compare the signatures on the petition with those on affidavits of registration to determine their authenticity or whether he should merely have determined whether each name on the petition is that of a registered voter. The statutes are not explicit, but both sections impliedly call for the clerk to compare each purported signature on the petition with that on the signer's affidavit of registration. It would be absurd to require the clerk to count as valid a signature which such comparison convinces him is spurious. In so holding we distinguish a number of broad expressions appearing in the cases. In Ley v. Dominguez, supra, 212 Cal. 587, 299 P. 713, a city clerk refused to certify a referendum petition, reporting that it contained too few valid signatures. The insufficiency resulted from the disallowance by the clerk of a number of signatures on technical grounds (e. g., wrong precinct numbers, use of initials rather than full names). The court overturned the clerk's determination, holding that referendum statutes must be liberally interpreted because the referendum is a right reserved to the People, not merely granted to them (212 Cal. at p. 593, 299 P. 713). In rejecting one of the clerk's claims (that signatures were properly disallowed where the petition circulators were allegedly not permanent residents of the city) the court declared: 'If fraud has been committed, a court of equity and not the city clerk is the proper forum to determine the matter in appropriate proceedings. [Citation.] * * * It must be remembered that his duties are purely ministerial and not judicial. Under the law, he should exercise his powers and perform his duties in such a manner as will, whenever possible, protect rather than defeat the right of the people to exercise their referendary powers.' (212 Williams v. Gill
Section 46 of the Elections Code governs both county clerks and clerks of general law cities.
Similarly, in Chester v. Hall (1921) 55 Cal.App. 611, 204 P. 237, the court overturned a county clerk's rejection of a petition because of technical defects regarding affidavits of circulation. The court stated in dictum: 'If it should happen that names were forged to the petition in sufficient numbers to reduce the lawful signatures to the petition below the statutory requirement, persons legally interested perhaps might have a remedy, the nature and character of which we need not here decide.' (55 Cal.App. at p. 615, 204 P. at p. 239 [quoting Butters v. City of Oakland, 53 Cal.App. 294, 200 P. 354].) Respondents rely on Reites v. Wilkerson, supra, 95 Cal.App.2d 827, 213 P.2d 773 where the superior court upheld the clerk's determination that a petition was insufficient because the accompanying affidavits of circulation were improperly filled out. On appeal the court held that such action by the clerk was arbitrary where the insufficiency could be corrected in the clerk's office; a writ of mandate was issued directing the clerk to reexamine the petitions. The court did declare that the clerk is the 'exclusive judge of the sufficiency of recall petitions in all particulars and courts are excluded from inquiry concerning them' (95 Cal.App.2d, at pp. 828-829, 213 P.2d at p. 774). The Reites court cited Baines v. Zemansky (1917) 176 Cal. 369, 168 P. 565, as the authority for the quoted statement; but Baines had merely upheld the validity of a city charter provision to this effect. That was not a holding that the provisions of the Elections Code are to be so interpreted. Moreover, because questions of the authenticity of signatures were not involved in the Reites case, the quoted statement was dictum as applied to our case. Moreover none of the statements in the cases we have reviewed, which seem to imply that the clerk may not reject a spurious signature, were made in relation to a clerk's comparison of signatures as called for by sections 46 and 3754. We conclude that the clerk should reject a signature which, when compared with the affidavit of registration, appears to him to be spurious.
The next question is the proper scope of the court's review of such a determination made by the clerk. We have seen that the clerk's ministerial acts are to be upheld if they are not unreasonable or arbitrary. But that rule is not found in the constitutional or statutory provisions reviewed above; it appears to be based simply on common sense fortified by general experience of the courts in the field of administrative law. To label the clerk's function in the present case as ministerial, and on that basis to deny review, would be contrary to the doctrine that the referendum is a reserved power to be liberally applied (Ley v. Dominguez, supra, 212 Cal. 587, 593, 299 P. 713). Where the clerk exercises judgment in excluding signatures on the basis of the comparison and analysis of handwriting, it is necessary that his determination be factually correct if it is to be a lawful basis of disqualifying a petition. Therefore the rule that his ministerial acts are final in the absence of fraud or arbitrariness is not applicable in this case.
It is pointed out by respondents that judicial determination of the validity of signatures may be quite burdensome, where many signatures are questioned. But the court may if necessary employ referees, The trial court erred in sustaining the clerk's handwriting determinations without exercising independent judgment. But reversal does not call for a new trial. In his findings of fact the trial judge declared that if it had been within his power he would have found to be genuine 94 signatures which had been rejected by the clerk. The assumption that he had no such power was an erroneous conclusion of law. Upon the finding made by the court 94 signatures should have been valid, with the result that the petition contained more than the 6,090 valid signatures necessary.
It is suggested that the findings are not determinative, and that further trial is required, because the parties had by stipulation reserved from the trial court's consideration the question of law whether the ordinance is subject to referendum proceedings and a purported question of fact as to whether certain of the signatures which had been allowed by the clerk should have been excluded. Of course, the question of law does not require further trial. The ordinance was pleaded in full in the petition for mandate. Such ordinances are generally held to be legislative in nature, subject to referendum. (Johnston v. City of Claremont (1958) 49 Cal.2d 826, 323 P.2d 71; Mefford v. City of Tulare (1951) 102 Cal.App.2d 919, 228 P.2d 847.) Nothing has been pleaded by respondents or advanced before us suggesting that the true nature of the ordinance was merely administrative. Thus no issue as to the legislative character of the ordinance is presented for trial.
Assuming the validity of respondents' doubtful proposition that the trial court could properly, in an action of this character, strike out signatures which had already been counted as valid by the clerk, the procedure of bifurcated trial contemplated by the supposed stipulation is contrary to the public's right to speedy determination of the question whether the referendum petition qualified for the ballot. See, passim, Elections Code, sections 3704 et seq., setting short time limits in connection with initiative and referendum processes. Here the ordinance under attack was adopted April 12, 1966. If further separate trial is allowed and a further appeal follows, final determination of the question whether the ordinance is subject to referendum may be delayed for another year or more. If these parties did enter into a stipulation contemplating such a result, it should not have been accepted as having any effect on the general public interest in having a speedy final determination of all the issues presented.
The judgment is reversed with directions to enter judgment for issuance of a writ of mandate as prayed by appellants.
DEVINE, P. J., and RATTIGAN, J., concur.