Metropolitan News-Enterprise


Thursday, January 17, 2008


Page 1


Non-Resident May Circulate Local Referendum Petition—C.A.




Statutes requiring that the circulator of a city referendum petition be a resident and eligible to vote in the city are unconstitutional, the Fourth District Court of Appeal ruled yesterday.

Div. Three ruled that opponents of a San Clemente ordinance that would prohibit second-story additions in the Shorecliffs section of the city are entitled to a referendum.

The panel affirmed a ruling by Orange Superior Court Judge Geoffrey T. Glass, after having previously stayed all action involving the ordinance, including the issuance of building permits in the area.

Ordinance 1319 was approved by the City Council in July 2006, but opponents, with the aid of a professional signature-gathering firm called Monster Petition, collected more than 3,900 signatures on a referendum petition. They needed 3,727, or 10 percent of the registered voters.

Supporters of the ordinance sought a writ of mandate directing that it be allowed to take effect without a referendum. They contended that most of the signatures were invalid because the circulators were not residents of the city, as required by Elections Code Sec. 9209, or eligible city voters, as required by Sec. 9238(c).

Backers of the petition drive, who had anticipated the challenge, responded that they had complied with the statute by having every signature gatherer who was not a city resident get the petition signer to sign a separate Declaration of Circulator, in effecting making the signer his or her own “circulator.”

Monster Petition submitted declarations attesting that this was common practice and that clerks in several cities had accepted signatures on that basis. Glass ruled that the statutes had not been complied with, but that ordinance opponents were entitled to the referendum because the city clerk had accepted the signatures as “genuine.”

After supporters of the ordinance appealed, opponents argued for the first time that the statues were unconstitutional, while supporters responded that the argument had been waived.

Constitutional Question

Presiding Justice David Sills, writing for the Court of Appeal, said the constitutional question could be considered on appeal under the rule that arguments not made in the trial court need not be treated as forfeited if they involve “an important issue of constitutional law or a substantial right.”

On the merits, Sills said the statutes were unconstitutional under Meyer v. Grant (1988) 486 U.S. 414 and Buckley v. American Constitutional Law Foundation (1999) 525 U.S. 182.

Meyer struck down Colorado’s ban on signature gathering by paid circulators. Buckley tossed out a Colorado measure, enacted in the wake of Meyer, that required that signature gatherers be Colorado residents and eligible to vote.

The reasoning of those decisions, Sills explained, was that the restrictions narrowed the pool of eligible circulators, thus inhibiting the rights of those who might sign the petition if given the opportunity and making it harder for supporters of a given viewpoint to obtain access to the ballot.

This is particularly true, the presiding justice wrote, where city residence is required, so that more than 99 percent of California residents are ineligible to circulate a given petition. Sills distinguished cases in various states upholding laws requiring that one be a state resident in order to circulate a statewide petition.

Those laws, the jurist explained, have been upheld as a means of maintaining the integrity of the process, the rationale being that it is easier to hold a resident accountable for violation of the election laws than a non-resident. But “it is safe to say that no post Buckley case authority to date supports the constitutionality of” a requirement that a circulator live in the city where the signatures are gathered.

Sills went on to say that even if the statutes are constitutional, and even if the trial judge was correct that a signer cannot also be his or her own “circulator” as a matter of law, the referendum should go forward based on the circulators’ reliance on the common practice of the city clerks.

Prior Case

Sills cited Assembly v. Deukmejian (1982) 30 Cal.3d 638, which held that a defect in an initiative petition should be excused because the backers relied upon erroneous language in the Secretary of State’s California Ballot Initiative Handbook.

Justices William Rylaarsdam and Eileen Moore concurred in the opinion.

The case was argued on appeal by James R. Sutton The Sutton Law Firm for Preserve Shorecliff Homeowners, which supports the ordinance, and by Frederic D. Woocher of Strumwasser & Woocher for San Clemente Residents for Responsible Government, which opposes the ordinance and is seeking a referendum.

In another petition case yesterday, the same panel ruled that officials properly invalidated signatures on petitions to recall the entire seven-member San Juan Capistrano school board in 2005.

The justices agreed with Orange Superior Court  Judge Michael Brenner that circulators, who required each signer to affix his or her address to one petition and then wrote in the address on the other six, violated a law that requires each signer to personally “affix” his or her address to recall petitions.

Unlike in the San Clemente case, Sills explained, the recall backers failed to show that their belief that the could lawfully add the addresses themselves was based on advice from election officials. Nor could they claim substantial compliance, Sills said, because requiring strict compliance is consistent with the public policy that would-be signers be encouraged to read and consider each recall on the merits.

Sills emphasized that the court was not ruling on whether a circulator might be allowed to assist a voter in affixing an address in other contexts, such as when the voter is elderly or disabled or where only a single official is sought to be recalled.

The cases are Preserve Shorecliff Homeowners v. City of San Clemente, 08 S.O.S. 275, and Capo v. Better Representation v. Kelley, 08 S.O.S. 287.


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