California Court of Appeal, Fourth District, Third Division
As Modified on Denial of Rehearing March 24, 2014
Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Reversed and remanded. Respondents' motion to dismiss. Denied. Respondents' motion for judicial notice. Granted. Appellant's motion for judicial notice. Granted. (Super. Ct. No. 30-2012-00585496)
Edward M. Teyssier for Plaintiff and Appellant.
Van Susteren Law Group and Adam Van Susteren for Ballotpedia and Californians Aware as Amici Curiae on behalf of Plaintiff and Appellant.
James L. Markman, City Attorney; Richards, Watson & Gershon, Mitchell E. Abbott, Patrick K. Bobko and Byron Miller, Los Angeles, for Defendant and Respondent Cheryl Balz and for Real Parties in Interest and Respondents.
No appearance for Defendant and Respondent Neal Kelley.
The Brea City Clerk is responsible for transmitting to the Orange County Registrar of Voters for publication all arguments in favor of or in opposition to municipal initiatives. In this case, we hold the city clerk does not have the authority to change an argument, or the accompanying statutorily required form statement identifying the author of the argument, to effectuate what the city clerk believed was the author's intent. Under Elections Code section 9600, the " form statement" is a required part of a ballot measure argument; we also refer to the form statement as the signature form in this opinion. The Elections Code provides procedures by which an argument's author may change, modify, or amend the argument. The Brea City Clerk's changes to certain arguments in opposition to two municipal initiatives on the November 2012 ballot violated the Elections Code. The city clerk further violated the Elections Code by failing to make those changes publically available. Instead, the city clerk provided the changes only to the registrar of voters for inclusion in the published sample ballot, but did not publish them on the city's Web site or otherwise make them available to the public. We reverse the trial court's judgment and remand for further proceedings.
Although the election has long since passed, and there is no longer an actual controversy regarding the two initiatives at issue, we exercise our discretion to consider this appeal. We do so because the issues presented are of significant public interest and are likely to recur while evading review, given the timeframes applicable to elections.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The Brea Accountability Act and the Brea Open Governance Act were initiative petitions authored by Brea resident Glenn Vodhanel. After the Orange County Registrar of Voters concluded both initiative petitions contained a sufficient number of valid signatures, the Brea City Council adopted resolution No. 2012-048, placing the measures on the next municipal election ballot.
The city council also adopted resolution No. 2012-050, authorizing the drafting of arguments regarding the two initiatives. The resolution read, in relevant part, as follows: " Now therefore, the City Council of the City of Brea, California does resolve, declare, determine and order as follows: [¶] 1. The City Council hereby authorizes: [¶] Ron Garcia (Councilmember in Favor/Against) [¶] Roy Moore (Councilmember in Favor/Against) [¶] Brett Murdock (Councilmember in Favor/Against) [¶] Don Schweitzer (Councilmember in Favor/Against) [¶] Marty Simonoff (Councilmember in Favor/Against) [¶] as members of the City Council, to file (a) written argument(s) not exceeding 300 words regarding the City measures specified above, accompanied by the printed name(s) and signature(s) of the author(s) submitting it, in accordance with Sections 9280 through 9287 of the California Elections Code, and to change the argument until and including the date fixed by the City Clerk after which no arguments for or against the City measure may be submitted to the City Clerk. [¶] The arguments shall be filed with the City Clerk, signed, with the printed name(s) and signature(s) of the author(s) submitting it, or if submitted on behalf of an organization, the name of the organization and the printed name and signature of at least one of its principal officers who is the author of the argument. The Form of Statement to Be Filed By Author(s) of Argument shall accompany the arguments." (Boldface & some capitalization omitted.)
Brea City Clerk Cheryl Balz (the city clerk) issued a notice to voters, advising that arguments for or against the two initiatives were due no later than July 3, 2012. In relevant part, the notice provided: " [T]he legislative body of the City, or any member or members thereof authorized by the body, or any individual voter or bona fide association of citizens, or any combination of voters and associations, may file a written argument, not-to-exceed 300 words in length, accompanied by the printed names(s) and signatures(s) of the authors(s) submitting it, or if submitted on behalf of [an] organization, the name of the organization, and the printed name and signature of at least one of its principal officers who is the author of the argument, for or against the City measure(s)." The notice also provided that rebuttal arguments could be submitted by the authors of direct arguments within 10 days after the final date for filing direct arguments. Rebuttal arguments were limited to 250 words, but had the same requirements regarding the names and signatures of the arguments' authors.
At a special meeting convened on July 3, 2012, the city council authorized Mayor Don Schweitzer and Mayor Pro Tempore Brett Murdock to prepare arguments against the two initiatives and to prepare rebuttal arguments in opposition to the arguments in favor of the initiatives, all of which were to be published in the sample ballot, on behalf of the city council. The city attorney advised that the arguments would be signed, " City Council of the City of Brea by the Mayor, attested by the City Clerk." Schweitzer and Murdock provided the arguments against the initiatives to the city clerk later that day. Each argument was accompanied by a document entitled, " Form of Statement to be Filed by Authors of Arguments," which was signed by Don Schweitzer and Brett Murdock; ...