Whitley v. Blakemore

ELI G. WHITLEY, Plaintiff and Appellant, v. MICHELLE D. BLAKEMORE, as County Counsel, etc., et al., Defendants and Respondents.

E075102

California Court of Appeals, Fourth District, Second Division

October 8, 2021

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No CIVDS2000033. David S. Cohn, Judge. Affirmed.

The Red Brennan Group, Aaron D. Burden for Plaintiff and Appellant.

Michelle Blakemore, County Counsel and Laura L. Crane, Deputy County Counsel, for Defendants and Respondents.

OPINION

RAMIREZ P. J.

Petitioner Eli Whitley circulated a petition for a ballot measure, the fifth in a series of what he described as a good faith attempt to require an accounting of expenditures by the County of San Bernardino (County). However, the ballot measure, as written, requires that the Board of Supervisors publish a monthly report, providing a daily accounting of the activities performed and work accomplished by county employees, in a manner which is accessible by the public.

Respondent County Counsel for the County of San Bernardino (County Counsel), informed petitioner that it could not prepare a ballot title and summary because the initiative suffered from the same constitutional invalidity as his four prior initiatives in that it infringed on the San Bernardino County Board of Supervisors ability to perform its constitutional and statutory duties. Petitioner filed a petition for writ of mandate to compel County Counsel to prepare a ballot title and summary pursuant to Elections Code section 9105. The trial court denied the petition and this appeal followed.

On appeal, petitioner argues the trial court erred in determining that the initiative measure was invalid pre-election and in concluding that the County properly refused to prepare the ballot title and summary due to invalidity of the measure. We affirm.

Background

On December 20, 2019, Whitley caused to be filed with County of San Bernardino Registrar of Voters a notice of intent to circulate petition for the initiative, which included a formal request that Blakemore prepare a ballot title and summary as mandated by Elections Code section 9105. This proposed ballot measure was the fifth in a series of attempts to add a measure to the ballot, but the prior attempts were the subject of a lawsuit by County Counsel challenging the validity of the proposed ballot measures.

In December 2019, petitioner sought certification for the ballot of a measure similar to the four previous measures, although it purported to eliminate the objectionable provisions. If passed, the proposed initiative would require:

The board of supervisors shall publish a monthly report of the daily activities and work accomplished by every county employee, officer, or elected official. The report shall detail the daily tasks performed by every county employee officer, or elected official and shall provide an accurate accounting of the time required to perform each task. The report shall be published in a manner that is easily accessible by the public. The report shall be published, each month, within 15 days after the end of the month. Past reports shall be made available to the public for a period of 10 years. The board of supervisors has full discretion on how to implement any necessary procedures and how to produce the report.

On December 30, 2019, County Counsel acknowledged receipt of the notice of intent to circulate the petition and notified petitioner that the initiative appeared to be invalid for the same reasons discussed in the pending matter of Michelle Blakemore v. Eli G. Whitley, San Bernardino Superior Court Case No. CIVDS 1912415. County Counsel informed petitioner that it would not prepare a ballot title and summary pending the outcome of the litigation on the prior iterations of the proposed initiative, which challenged the facial validity of the measure on the grounds it infringed on the San Bernardino County Board of Supervisors ability to perform its constitutional and statutory duties.

On January 10, 2020, petitioner filed an unverified petition for writ of mandate to compel County Counsel to perform its ministerial duty of preparing a ballot title and summary of the proposed initiative. He requested a ruling on the petition ex parte, which was opposed by County Counsel. County Counsel requested that the court take judicial notice of the related litigation. On January 14, 2020, the trial court denied the request to rule on the petition ex parte. On January 21, 2020, petitioner filed an amended and verified petition for writ of mandate.^[1]

On January 27, 2020, County Counsel opposed the petition. The matter came on for hearing on February 7, 2020^[2], at which time the trial court denied the petition for writ of mandate, and judgment was subsequently entered in County Counsel's favor on March 9, 2020. That same date, petitioner appealed.

Discussion

1. The Superior Court Did Not Err in finding Petitioner Was Not Entitled to a Ballot Title and Summary

Petitioner argues that the trial court erred in concluding he was not entitled to a ballot title and summary for the initiative to amend the San Bernardino County Charter. He asserts that the duty to provide a ballot title and summary for an initiative measure is ministerial and that the court was compelled to issue the writ of mandate. We disagree.

a. Principles Pertaining to Review of Orders Denying Petitions for Extraordinary Relief.

“To obtain a writ of mandate under Code of Civil Procedure section 1085, the petitioner must show (1) a clear, present, ministerial duty on the part of the respondent and (2) a correlative clear, present, and beneficial right in the petitioner to the performance of that duty.” (Howard Jarvis Taxpayers Assn. v. Amador Water Agency (2019) 36 Cal.App.5th 279, 291, citing Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 128-129 (Alliance).) “A ministerial duty is an act that a public officer is obligated to perform in a prescribed manner required by law when a given state of facts exists.” (Alliance, supra, at p. 129.)

On appeal following a trial court's decision on a petition for writ of mandate, we review the record to determine whether the trial court's findings are supported by substantial evidence, but we review de novo questions of law involving statutory and constitutional interpretation. (Alliance, supra, 108 Cal.App.4th at p. 129; Baba v. Board of Supervisors (2004) 124 Cal.App.4th 504, 512.)

b. Overview of Process Pertaining to Ballot Initiatives

In the present case, we are concerned with statutory requirements applicable before a petition seeking to qualify an initiative for the ballot is circulated.

Any proposed ordinance may be submitted to the board of supervisors by filing an initiative petition with the county elections official, signed by a specified number of voters specified by the election official, based on the number of votes cast in the last gubernatorial election. (Elect. Code, §§ 9101, 9107.)

After the notice of intent to circulate the petition is submitted to the board of supervisors, the county elections official shall immediately transmit a copy of any proposed measure to the county counsel, who, within 15 days after the proposed measure is filed, then provides an official a ballot title and summary for the proposed measure. (Elec. Code, § 9105, subd. (a).)

The ballot title and summary prepared by the County Counsel will then appear upon each section of the petition, above the text of the proposed measure. (Elec. Code, § 9105, subd. (c).) The county elections official then furnishes a copy of the ballot title and summary to the proponents of the proposed measure, who, prior to the circulation of the petition, must publish the notice of intention, and the ballot title and summary of the proposed measure, in a newspaper of general circulation published in that county, followed by proof of publication with the county elections official. (Elec. Code, § 9105, subds. (b), (c).)

Following publication, the proponents may commence to circulate the petition among the voters of the county for signatures by any registered voter of the county. (Elec. Code, § 9108.)

c. Analysis of the Propriety of Pre-Election Review of Ballot Measures.

We begin by recognizing that the local electorate's right to initiative and referendum is guaranteed by the California Constitution, article II, section 11, and is generally co-extensive with the legislative power of the local governing body. (DeVita v. County of Napa (1995) 9 Cal.4th 763, 775, citing Simpson v. Hite (1950) 36 Cal.2d 125, 129 [222 P.2d 225].) It is “‘the duty of the courts to jealously guard this right of the people' [citation].... ‘[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right [to local initiative or referendum] be not improperly annulled....' [Citations.]” (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591.)

However, while there is a presumption in favor of the right of initiative, that presumption is rebuttable upon a definite indication that the Legislature, as part of the exercise of its power to preempt all local legislation in matters of statewide concern, has intended to restrict that right. (See Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 779.) Thus, the California Supreme Court has held that “the initiative and referendum power could not be used in areas in which the local legislative body's discretion was largely preempted by statutory mandate.” (DeVita v. County of Napa, supra, 9 Cal.4th at p. 776, and cases cited therein.)

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