Metropolitan News-Enterprise


Monday, April 28, 2003


Page 1


C.A. Limits Authority of City Clerk to Reject Initiative Petition


By KENNETH OFGANG, Staff Writer/Appellate Courts


A city clerk has no authority to reject an initiative petition based on extrinsic evidence that election laws were violated in the manner of its circulation, the First District Court of Appeal ruled Friday.

“We conclude elections official’s role in certifying an initiative petition is confined to the ministerial task of examining the four corners of the petition for compliance with submission requirements,” Justice Linda Gemello wrote for Div. Five.

The court affirmed a San Mateo Superior Court judge’s order that Millbrae City Clerk Cheryl Mitchell Wade certify the Downtown Zoning Initiative for placement on the city’s ballot.

The DZI would create density limits on specific types of businesses in a section of the Bay Area city’s downtown area. Backers submitted about 1,500 signatures to Wade two years ago.

Petition Returned

Wade returned the petition to the sponsoring committee, the Alliance for a Better Downtown Millbrae, refusing to certify it due to objections to the form of the petition and the way it was circulated.

The signature sheet of each petition form contained on its front the city attorney’s 418-word summary of the initiative, which took up about two-thirds of the page, along with spaces for three signatures. The back of the form contained spaces numbered 4 through 10 for additional signatures, and a circulator’s declaration.

Wade told the alliance the petition form was invalid because the title and summary did not appear on every signature page and because the notice of intention to circulate the petition and the full text of the initiative had not been circulated with every signature sheet.

Judge Robert D. Foiles, however, granted the alliance’s petition for a writ of mandate.

Substantial Compliance

Foiles ruled that placing the summary on the front of each signature sheet constituted substantial compliance with the statutory requirement that the summary appear “across the top of each page...whereon signatures are to appear.” As for the claim that circulators failed to comply with the applicable Elections Code sections, the judge said the city clerk had overstepped the bounds of her ministerial function.

Gemello, writing for the Court of Appeal, agreed on both points.

While the parties in their briefs cited conflicting dictionary definitions in arguing whether “each page” means “each side of a sheet of paper” or “each sheet of paper,” the justice concluded that the alliance has the better argument based on legislative intent.

She noted that a summary can be as long as 500 words, and a summary of that length, printed in eight-point type, would leave room for no more than one signature.

“If the declaration were included on each signature sheet, as was done here, the declaration and a full-length summary would leave no room at all for any actual signatures,” she wrote. “Such a construction is strained and impractical, and we conclude that it is not required by the purposes underlying the impartial title and summary reprint requirement.”

As for the manner of circulation, Gemello wrote that no provision of the Elections Code “authorizes a local elections official to evaluate the credibility of unidentified third parties, consider extrinsic evidence, and make an adjudicative decision concerning whether the election laws have been violated.”

The case is Alliance for a Better Downtown Millbrae v. Wade, A099453.


Copyright 2003, Metropolitan News Company