Filed 9/20/19 Sparks v. Schmidt CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

REED SPARKS et al.,

Plaintiffs and Appellants,

v.

GRACE SCHMIDT, as City Clerk, etc.,

Defendant and Respondent.

H044631

(Santa Clara County

Super. Ct. No. CV301471)

I. INTRODUCTION

Appellants Reed Sparks, Ruby Elbogen, and William Hausman were proponents of an initiative measure to amend the City of Cupertino’s general plan for the purpose of enabling development of a hotel and conference center. They submitted four boxes of signed initiative petitions to respondent Grace Schmidt, the city clerk, who rejected the petitions for failure to comply with certain formatting requirements set forth in the Elections Code for initiative petitions.

Sparks, Elbogen, and Hausman then filed a petition for writ of mandate challenging Schmidt’s rejection of their initiative petitions. In its order of March 1, 2016, the trial court denied the writ petition on the grounds that the initiative petitions failed to substantially comply with the requirement of Elections Code sections 9201 and 9203, subdivision (b) that the city attorney’s title and summary of the initiative measure be placed on the first page of the initiative petition. For the reasons stated below, we agree with the trial court and therefore we affirm the order.

II. FACTUAL BACKGROUND

Three individuals were proponents of an initiative measure to amend the City of Cupertino’s general plan, including Sparks, a former mayor of the City of Cupertino (City); Elbogen, a City resident and publisher of the Cupertino News and C Magazine; and William Hausman, a former chief business officer of the Cupertino School District. The purpose of the amendment was to establish “a limited zoning district to facilitate the development of a full-service hotel and conference center in the North De Anza Gateway area, with a hotel of 156 rooms or less at the discretion of the applicant with a maximum building height of 48 feet.”

At all relevant times Schmidt was City Clerk and also served as the City’s elections official pursuant to section 320. As elections official, it was Schmidt’s responsibility to “receive materials from initiative proponents and to review and process those materials in accordance with the Elections Code.” On April 6, 2016, Schmidt received a notice of intent to circulate petition that was signed by the three initiative proponents and included the text of the proposed initiative measure, as well as a request that the City Attorney prepare a title and summary for the measure. The proposed title for the initiative measure was the North De Anza Gateway Initiative. The proponents’ notice of intent to circulate petition also included a statement of their reasons for proposing the initiative measure.

Schmidt provided the City Attorney’s official title and summary for the initiative measure to the proponents and their attorney on April 21, 2016. On October 4, 2016, the initiative proponents submitted four boxes of initiative petition sections to Schmidt. As described by Schmidt, the petition sections were on “double-sided paper measuring 14 inches by 17 inches, folded in half like a newspaper, comprising a total of four pages. The first three pages were consecutively numbered ‘1’ through ‘3.’ Page 1 contained a request for a special election, along with the proponents’ ‘Notice of Intent to Circulate Petition’ and the beginning of the text of the proposed initiative. The remaining text was set forth on pages 2 and 3. The last page was unnumbered and contained a version of the City Attorney’s title and summary as well as the signature blocks and the circulator’s declaration.”

On the same day, October 4, 1916, Schmidt “conducted a prima facie review and raw count of the Petition sections” in the presence of two representatives of the proponents of the initiative measure. Schmidt counted a total of 2,048 petition sections, which contained a total of 5,266 signatures.

After completing her initial review, Schmidt prepared a receipt for the prima facie section and signature count and provided it to a representative of the initiative proponents. The receipt included the following statement by Schmidt: “As prescribed in Election Code §9210, I have determined from my examination that the number of signatures on the petition, prima facie, equals or exceeds the minimum number of signatures required. I am still in the process of checking the format of the petition, however, and am only receiving the petitions and not accepting them at this point.”

Schmidt then reviewed the format of the petition sections for compliance with Elections Code requirements. On October 5, 2016, Schmidt issued a “Receipt Rejecting Initiative Petition,” which advised the initiative proponents that the petition sections were rejected for failure to comply with section 9203, subdivision (b), as follows: (1) the official ballot title and summary prepared by the city attorney did not appear above the text of the proposed measure; (2) the “full heading” did not appear on the first page of the petition; (3) the official ballot title and summary only appeared on the last page of the petition over the signature blocks; (4) the ballot title and summary on the petition varied from the official title and summary prepared by the city attorney, specifically the omission of the words “title” and “summary” and the addition of the word “and”; and (5) the ballot title on the back of the petition was not in boldface type.

III. PROCEDURAL BACKGROUND

A. The Writ Petition

After Schmidt issued the receipt rejecting their initiative petition, Sparks, Elbogen, and Hausman (hereafter, collectively petitioners) filed a verified petition for writ of mandate challenging the rejection. (Code Civ. Proc. § 1085; § 13314, subd. (a)(1).) Petitioners asserted that the petition sections either actually or substantially complied with every Election Code formatting requirement for an initiative petition. On that basis, they sought a writ of mandate compelling the city clerk to perform the ministerial duties of accepting the petition for filing, verifying the signatures on the petition, and certifying the results to the City Council if the petition was found to be sufficient.

Schmidt filed opposition to the writ petition, contending that she had a ministerial duty to reject the petition sections as defective due to the omission of the city attorney’s impartial ballot title and summary on the first page of the initiative petition above the proposed text of the measure, as required by sections 9201 and 9203, subdivision (b). Schmidt further argued that placement of the city attorney’s ballot title and summary on the last page of the initiative petition did not constitute substantial compliance with the statutory requirements. She explained that petitioners had placed their own notice of intent to circulate petition and reasons for the initiative measure on the first page of the petition sections where the Legislature intended prominent placement of the city attorney’s neutral summary of the initiative measure. Schmidt asserted that this defect could result in voters being confused or mislead about the proposed initiative measure.

B. The Trial Court’s Order

After reviewing the parties’ briefing and holding a hearing, the trial court denied the writ petition in its order of March 1, 2017. The trial court determined that “the petition sections do not technically comply with the statutory directives in Elections Code sections 9201 and 9203 because Petitioners omitted the city attorney’s title and summary from the first page of each section, included an additional ‘and’ in the summary printed on the signature page, and failed to print the title and summary on the signature page in boldface type.”

Regarding petitioners’ contention that the initiative petition substantially complied with sections 9201 and 9203 despite these defects, the court ruled that “[t]he inclusion of the extra ‘and’ in the summary and failure to print the city attorney’s title in boldface type are clearly minor defects that could not have affected the integrity of the electoral process under the circumstances. [Citation.]”

However, the trial court found the omission of the city attorney’s title and summary from the first page of each petition section to be a significant defect. The court determined that “[p]etitioners’ omission of this essential information from the front of the petition and inclusion of it only on the signature page does not serve the purpose of preventing voters from being misled because the placement did not allow voters to easily access accurate and objective information about what they were being asked to sign.”

Further, the court observed that “[p]etitioners did not simply omit the city attorney’s neutral explanation of the measure from the front of each petition section. Instead, they included their arguments in support of the Initiative, which clearly are not neutral. For example, on the first page of each petition section where the [city attorney’s] title and summary should have appeared, Petitioners stated the boutique hotel was the ‘best use’ of the property in the North De Anza Gateway area. [Citation.] Thus, under these circumstances, voters did not first receive neutral and objective information to facilitate their understanding of the technical language of the full text of the measure that followed.”

The trial court concluded that “[p]etitioners therefore do not demonstrate the petition sections, despite the omission of the [city attorney’s] title and summary from the first page, substantially comply with the purpose and substance of the statutory directives. Petitioners thus fail to demonstrate the petition sections technically or substantially comply with the statutory directives such that [Schmidt] had a ministerial duty to accept them.”

Finally, the trial court rejected petitioners’ contention that the Elections Code required Schmidt to accept the technically defective petition sections for filing once she conducted the raw signature count, noting that petitioners had not provided any authority to support this contention.

IV. DISCUSSION

On appeal, petitioners contend that the trial court erred in denying their petition for writ of mandate for two reasons: (1) their placement of the city attorney’s title and summary of the initiative measure on the last page of the petition sections constitutes substantial compliance with section 9203, subdivision (b); and (2) Schmidt violated sections 9210 and 9211 by failing to accept the petition sections for filing and verify the signatures after determining the raw count of signatures exceeded the statutory minimum.

We will apply the independent standard of review to the trial court’s order, since our analysis of petitioners’ contentions on appeal requires the application of law to undisputed material facts. (See Wilson v. County of Napa (2017) 9 Cal.App.5th 178, 183; Lin v. City of Pleasanton (2009) 175 Cal.App.4th 1143, 1151.) As we will discuss, in our analysis we agree with both the result and the reasoning of the trial court.

A. Sufficiency of the Initiative Petition

“Sections 9200 to 9226 spell out the manner in which the people may exercise their constitutional right to pass city ordinances by initiative. (See Cal. Const., art. II, §§ 8, subd (a), 11, subd. (a).) Under section 9203, subdivision (a), an initiative proponent must submit the proposed measure in advance to an elections official who will forward it to the city attorney. In turn, the city attorney must prepare a title and a true and impartial summary of the proposed measure.” (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129-130.)

The placement of the city attorney’s title and summary on an initiative petition is specified in sections 9201 and 9203, subdivision (b). Section 9201 provides in part: “Any proposed ordinance may be submitted to the legislative body of the city by a petition filed with the elections official of the legislative body, . . . The petition may be in separate sections, providing that the petition complies with this article. The first page of each section shall contain the title of the petition and the text of the measure.” (Italics added)

Section 9203, subdivision (b) provides in part: “The person proposing the measure shall, prior to its circulation, place upon each section of the petition, above the text of the proposed measure and across the top of each page of the petition on which signatures are to appear, in roman boldface type not smaller than 12 point, the ballot title prepared by the city attorney. . . . The heading of the proposed measure shall be in substantially the following form: [¶] . . . [¶] The city attorney has prepared the following title and summary of the chief purpose and points of the proposed measure: [¶] (Here set forth the title and summary prepared by the city attorney. This title and summary must also be printed across the top of each page of the petition whereon signatures are to appear.)” (Italics added.)

To construe these provisions of the Election Code, we apply the following rules: “ ‘ “As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose.” [Citation.] “We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature’s enactment generally is the most reliable indicator of legislative intent.” [Citations.] The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]’ [Citation.]” (San Jose Unified School Dist. v. Santa Clara County Office of Education (2017) 7 Cal.App.5th 967, 975.)

When read together, the plain language of sections 9201 and 92013, subdivision (b) expressly provides that the city attorney’s title and summary must be placed on the first page of each section of an initiative petition, above the text of the proposed measure. We therefore agree with trial court’s ruling that petition sections did not “technically comply” with sections 9201 and 9203, subdivision (b) because petitioners did not place the city attorney’s title and summary on the first page of each section. Petitioners do not dispute this ruling. They argue, however, that their placement of the city attorney’s title and summary on the last page of the petition sections, above the signature blocks, constitutes substantial compliance with sections 9201 and 9203, subdivision (b).

The California Supreme Court stated the standard for determining substantial compliance with the Election Code requirements for initiative petitions in Costa v. Superior Court (2006) 37 Cal. 4th 986, 1017. “ ‘This court has stressed that technical deficiencies in referendum and initiative petitions will not invalidate the petitions if they are in “substantial compliance” with statutory and constitutional requirements. [Citation.] A paramount concern in determining whether a petition is valid despite an alleged defect is whether the purpose of the technical requirement is frustrated by the defective form of the petition. “The requirements of both the Constitution and the statute are intended to and do give information to the electors who are asked to sign the . . . petitions. If that be accomplished in any given case, little more can be asked than that a substantial compliance with the law and the Constitution be had, and that such compliance does no violence to a reasonable construction of the technical requirements of the law.’ [Citation.] [Citation.]” (Ibid., fn. omitted.)

Thus, as this court has stated in the analogous context of a referendum petition, “ ‘ “[s]ubstantial compliance . . . means actual compliance in respect to the substance essential to every reasonable objective of the statute.” ’ [Citation.]” (Hebard v. Bybee (1998) 65 Cal.App.4th 1331, 1339 (Hebard.) The objectives of the ballot title and summary requirements of section 9203, subdivision (b) are “(1) to reduce the risk that voters were misled when signing the petition; (2) to allow verification that the signers had a neutral explanation of the proposed ordinance available to them when they signed; and (3) to prevent signatures from being submitted in support of a different measure than that for which they were procured. [Citation.]” (MHC Financing Ltd. Partnership Two v. City of Santee (2005) 125 Cal.App.4th 1372, 1389 (MHC Financing).)

As the trial court pointed out, instead of placing the city attorney’s title and summary of the initiative measure on the first page of each petition section, petitioners placed their own notice of intent to circulate petition. The notice included petitioners’ non-neutral reasons for supporting the initiative measure, including, among other things, that “[t]his initiative is not about bypassing the project review process—it is about supporting the City’s vision for responsible growth, to steadily increase, its tax base. Take a stand to support smart growth—vote YES on the initiative!”

We determine that petitioners’ placement of their notice of intent to circulate petition on the first page of each petition section, instead of the neutral title and summary prepared by the city attorney, did not actually comply with the primary objective of sections 9201 and 9203, subdivision (b), which is “to reduce the risk that voters were misled when signing the petition.” (See MHC Financing, supra, 125 Cal. App.4th at p. 1389.) There is obviously a risk that voters may be misled or confused by reading the petitioners’ non-neutral reasons for supporting the initiative measure on the first page of the petition section above the text of the measure, instead of the neutral summary of the initiative measure as intended by the Legislature.

Where, as here, “ ‘a petition does not comply with the reasonable objectives of statutes designed to protect electors from confusing or misleading information, its deficiencies threaten the integrity of the election process, warranting a refusal to file the petition.’ [Citation.]” (Hebard, supra, 65 Cal. App. 4th at p. 1338.) We therefore conclude that the trial court did not err in ruling that petitioners’ placement of the city attorney’s title and summary on the last page of the petition sections did not constitute substantial compliance with the sections 9201 and 9203, subdivision (b) requirement of placement on the first page above the text of the initiative measure.

We are not convinced by petitioners’ arguments to the contrary. Petitioners rely on the decision in Zaremberg v. Superior Court (2004) 115 Cal.App.4th 111 (Zaremberg), but that decision is distinguishable. The issue in Zaremberg was whether a statewide referendum petition was fatally defective due to the lack of precision in the attorney general’s title and summary and the petitioners’ failure to comply with requirement of printing the short title on each page. (Id. at pp. 117-119.) The appellate court determined that the attorney general’s summary was not confusing or misleading because it could be reasonably read to describe the chief purpose and points of the provision set forth in the referendum petition. (Id. at p. 118.) The court also determined that the failure to print the short title on each page of the petition was not confusing or misleading since it was apparent that the pages missing the short title were continuation pages of the text of the provision. (Id. at pp. 119-120.) No issue was raised in Zaremberg regarding the placement of the attorney general’s title and summary.

As the Zaremberg court noted, “ ‘[t]he main purpose of [the title and summary] requirements is to avoid misleading the public with inaccurate information.’ [Citations.]” (Zaremberg, supra, 115 Cal.App. 4th at p. 116.) As we have discussed, we determine that the placement of petitioners’ notice of intent to circulate petition on the first page of the petition sections, above the text of the initiative measure, is likely to confuse or mislead the public due to the prominent placement of petitioners’ non-neutral reasons for supporting the initiative measure.

Petitioners’ argument that no evidence of voter confusion was presented is also unconvincing. This court stated in Hebard that “[w]hile the court may consider relevant evidence presented by the parties, we are not persuaded that a party’s failure to present a particular kind of evidence (such as voter declarations) deprives the court of the ability to determine the legal issue of substantial compliance.” (Hebard, supra, 65 Cal.App.4th at p. 1343.) As in Hebard, “evidence of actual voter confusion was not necessary” to our determination that placement of the city attorney’s title and summary on the last page of the petition sections, instead of the first page, did not constitute substantial compliance because such placement did not satisfy the reasonable objectives of sections 9201 and 9203, subdivision (b). (Ibid.)

We therefore conclude that the trial court did not err in ruling that petitioners failed to substantially comply with the requirements of sections 9201 and 9203, subdivision (b).

B. Filing Requirement

Petitioners also contend that the trial court erred in denying their petition for writ of mandate because Schmidt violated sections 9210 and 9211 by failing to accept the petition sections for filing and verify the signatures after determining the raw count of signatures exceeded the statutory minimum.

Section 9210 provides in part: “When the petition is presented for filing, the elections official shall do all of the following: [¶] . . [¶] (b) Determine the total number of signatures affixed to the petition. If, from this examination, the elections official determines that the number of signatures, prima facie, equals or is in excess of the minimum number of signatures required, he or she shall accept the petition for filing.”

Section 9211 provides in part: “After the petition has been filed, as herein provided, the elections official shall examine the petition in the same manner as are county petitions in accordance with Sections 9114 and 9115, . . . .”

We need not decide whether Schmidt improperly failed to accept the initiative petition sections for filing and to verify the signatures as petitioners contend. Even assuming, without deciding, that Schmidt failed to comply with sections 9210 and 9211, no miscarriage of justice has occurred that would warrant reversal on appeal.

“ ‘Article VI, section 13, [of the California Constitution] admonishes us that error may lead to reversal only if we are persuaded “upon an examination of the entire cause” that there has been a miscarriage of justice. In other words, we are not to look to the particular ruling complained of in isolation, but rather must consider the full record in deciding whether a judgment should be set aside.’ [Citation.]” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105.) Otherwise stated, “[r]eversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error. [Citation.]” (Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, 20-21 (Fisher).)

Here, we have determined that the initiative petition sections submitted by petitioners were fatally defective due to failure to comply with sections 9201 and 9203, subdivision (b). Therefore, even assuming that Schmidt had accepted the initiative petition sections for filing and verified the signatures, the petition sections would have been properly rejected due to failure to comply with the Elections Code. In short, even assuming errors in the Election Code’s filing and verification requirements, the error was not prejudicial since the outcome—rejection of the petition sections—would have been the same. (See Fisher, supra, 25 Cal.App.5th at pp. 20-21.)

For these reasons, we conclude that the trial court did not err in denying the petition for writ of mandate, and we will affirm the order.

V. DISPOSITION

The order of March 1, 2017, denying the petition for writ of mandate is affirmed.

_________________________________

ELIA, ACTING P.J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

MIHARA, J.

Sparks et al. v. Schmidt

H044631