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Carson Citizens for Reform v. Kawagoe

October 13, 2009

CARSON CITIZENS FOR REFORM ET. AL., CROSS-COMPLAINANTS AND RESPONDENTS,
v.
HELEN S. KAWAGOE, AS CITY CLERK, ETC., ET AL., CROSS-DEFENDANTS AND APPELLANTS.



APPEALS from a judgment and an order of the Superior Court of Los Angeles County, Rolf M. Treu, Judge. Reversed. (Los Angeles County Super. Ct. No. BC375332).

The opinion of the court was delivered by: Kriegler, J.

CERTIFIED FOR PUBLICATION

Proponents of a petition to recall a local mayor disputed the validity of requests by voters to withdraw their signatures from the petition that were filed with the city clerk and honored by the county registrar, because the requests lacked a declaration of a circulator, and in some instances, the voter signed the petition after filing the request. The city clerk filed an action for declaratory relief against the county registrar, naming the recall proponents and the mayor as real parties in interest. The recall proponents filed a cross-complaint for declaratory relief and a writ of mandate. The trial court declared that a request to withdraw a signature under Elections Code sections 103 or 11303*fn1 must be accompanied by a declaration of circulator as provided in Elections Code section 104, and is ineffective as to a subsequent signature. The trial court issued a writ of mandate to the city clerk to certify the petition as sufficient. In a subsequent order, the trial court awarded attorney fees to the recall proponents under Code of Civil Procedure section 1021.5 as against the county registrar and the city clerk. The county registrar appeals from the judgment and the order awarding attorney fees, contending that the trial court‟s interpretation of the statutory requirements for withdrawal of a petition is incorrect. The city clerk appeals from the order awarding attorney fees on other grounds.

We conclude the appeal is moot as to the portion of the judgment issuing the writ of mandate, because the recall election has been held. However, the appeal is not moot as to the declaratory relief provided, because the recall proponents‟ status as the successful parties for purposes of an award of attorney fees depends on the propriety of the trial court‟s ruling on the merits. We hold that under the plain language of sections 103 and 11303, a request to withdraw a signature from a recall petition is effective, without regard to whether the voter signs the petition before or after signing the request, as long as the request is filed with the appropriate election official prior to the filing of the petition. We further hold that a voter‟s request to withdraw his or her signature from a recall petition is not a "petition or paper" that requires the signature of a circulator under section 104. Therefore, the withdrawal requests at issue in this case were valid, and the city clerk‟s initial certification of the recall petition as insufficient was correct. The recall proponents should not have been found to be successful parties. We reverse the judgment and the order awarding attorney fees as to both the county registrar and the city clerk.

FACTS AND PROCEDURAL BACKGROUND

Petition to Recall City Mayor

Carson Citizens for Reform circulated a petition to recall the City of Carson Mayor James L. Dear (the Mayor). The petition required 8,676 valid signatures to be certified as sufficient. City Clerk Helen S. Kawagoe (the Clerk) received 5,842 requests from voters to withdraw their signatures from the petition. Most of the withdrawal requests were from voters who had not signed the petition and did not include the declaration of a circulator. The Clerk‟s office stamped the date of receipt on the requests. Approximately 100 to 127 voters signed the petition after filing withdrawal requests.

Citizens presented the petition to the Clerk for filing on February 5, 2007. The Clerk determined that the petition contained 12,164 signatures. On February 6, 2007, the Clerk transmitted the petition and the withdrawal requests to the County of Los Angeles Registrar-Recorder Conny B. McCormack (Dean C. Logan‟s predecessor, referred to collectively and individually as the Registrar) for signature verification.

Of the 5,842 withdrawal requests, only 868 requests were verified to match signatures on the petition. The Registrar withdrew the signatures from the petition regardless of whether the voter had signed the petition before or after signing the withdrawal request. On March 5, 2007, the Registrar notified the Clerk that the signature verification for the recall petition had been completed and 8,590 signatures were verified and sufficient.

The total number of valid signatures was 86 less than the number required to qualify the petition. On March 7, 2007, the Clerk sent a notice to Citizens stating that the number of signatures found sufficient was 8,590 and the number required to qualify a recall for the ballot was 8,676. Accordingly, the Clerk deemed the recall petition to be insufficient and stated that "no action shall be taken on the petition."

After examining the petition and the Registrar‟s signature verification determinations, Citizens concluded that several signatures were improperly excluded or withdrawn. On April 18, 2007, Citizens sent a list of disputed signatures to the Clerk and requested a final determination. The Clerk submitted the list of disputed signatures to the Registrar for review. The Registrar refused to review the disputed signatures. The Mayor disagreed that there were errors, but argued that if there were errors, neither the Clerk nor the Registrar could take any further action with regard to the petition once a notice of insufficiency had been issued.

Legal Proceedings

On August 3, 2007, the Clerk filed an action for declaratory and injunctive relief against the Registrar. The complaint named Citizens, its president and vice-president, individual proponents of the recall petition, and the Mayor as the real parties in interest. The Clerk sought a declaration of the respective duties of the Clerk and the Registrar to review the disputed signatures and withdrawal requests, and to correct errors in the signature verification process.

On October 3, 2007, Citizens filed a cross-complaint against the Clerk, the Registrar, and the Mayor. Citizens sought a declaration that a signature withdrawal request requires a declaration of circulator under section 104 and a writ of mandate commanding the Clerk and the Registrar to disregard the withdrawal requests lacking a declaration of circulator. In addition, Citizens sought a declaration that section 103 requires a withdrawal request to be signed after the voter signs the petition and a writ of mandate commanding the Clerk and the Registrar to disregard any withdrawal request shown by the Clerk‟s date stamp to have been signed prior to the signature of that voter on the petition. Citizens requested an award of attorney fees pursuant to Code of Civil Procedure section 1021.5.

The parties agreed that the trial court would initially determine whether a declaration of circulator is required on withdrawal requests and whether a withdrawal request can be used to withdraw a subsequent signature on the petition. A court trial was held on these two issues on May 9, 2008. The parties stipulated that the 868 withdrawal requests at issue did not contain a declaration of circulator, and between 100 and 127 of the withdrawal requests were signed prior to the date the same voter signed the petition. The trial court found that a signature withdrawal request required a declaration of circulator under section 104. In addition, the trial court declared that under section 103, a signature withdrawal request is not valid if the voter signed the withdrawal before he or she signed the recall petition. Therefore, on May 13, 2008, the trial court issued a peremptory writ of mandate ordering the Clerk to rescind the March 7, 2007 notice of insufficiency and to certify the petition to recall the Mayor as sufficient.

Citizens filed a motion for an award of attorney fees under Code of Civil Procedure section 1021.5. A hearing was held on July 10, 2008, and the trial court took the matter under submission. The Registrar filed a notice of appeal from the May 13, 2008 judgment. In a minute order dated July 14, 2008, the trial court found that Citizens was the prevailing party as against both the Clerk and the Registrar, and awarded attorney fees of $78,897.95. ...


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